The Inroads listserv began in 1997 as a means to link Inroads readers and others interested in policy discussion. With nearly 130 subscribers, it offers one of the few chances for people of diverse views to grapple with social and political issues in depth. To subscribe, send an email note to listserv@lists.queensu.ca with the following in the subject and body of the message: subscribe inroads-l

On March 28, Quebec’s Minister of Immigration, Diversity and Inclusiveness, Simon Jolin-Barrette, introduced Bill 21, An Act Respecting the Laicity of the State, in the National Assembly. The bill, which proposed to prohibit the wearing of religious dress by some government employees, was the latest in a series of attempts – undertaken by Quebec governments of three different political parties over a period of almost a decade – to put the concept of laïcité into practice through legislation. Unlike previous initiatives, Bill 21 was passed by the National Assembly, on June 16, and it went into effect on the same day.

Even though the issue was not new, Bill 21 aroused strong passions and was extensively debated. A very active forum for debate was the Inroads listserv, where there was a lengthy exchange in late March and early April when the bill was first introduced. After sporadic comments in the intervening months, the debate erupted again during the federal election campaign when Prime Minister Trudeau and other prominent leaders said they might intervene in the Charter-based court challenge to Bill 21. This became a catalyst for the rise in the polls of the Bloc Québécois. Then, after another lull, the listserv was once more peppered with posts about Bill 21 in the days following the election.

Although one of the most eloquent voices opposing the bill on the listserv was that of a francophone Quebecer, and a number of participants from elsewhere in Canada with a longstanding sympathetic interest in Quebec supported the bill, the debate did demonstrate that this issue is viewed in very different ways in French Quebec on one hand and in English Canada on the other. Comprising some 200 posts between March and October, the listserv debate has, not surprisingly, been repetitive, and each side remains as convinced of the rightness of its position at press time as it was at the beginning. Still, there were some thoughtful arguments put forward, and some of the highlights of the pre-election round of the debate are presented here. This will not be the last word on the subject, and Inroads will be covering aspects of it in future issues.

The pre-election round began when Frances Abele drew the attention of the listserv to a September 28 article in the Calgary Herald by Calgary Mayor Naheed Nenshi.¹ “There are those who say that this is about religious neutrality,” Nenshi wrote:

Make no mistake. It is not. This is a law that targets three groups of people: Muslim women who cover their heads, baptized Sikhs and Jewish men who wear a yarmulke. No other sizable religious groups in the province have to wear anything as part of their religious faith … What this ban says is that people of certain faiths, and only these faiths, can’t be trusted to do their jobs. It tells schools and municipalities that they can’t hire the best people. It says that kids in public schools can’t be exposed to people different than them.

Introducing Nenshi’s article, Frances wrote that she was “posting this because I think it can help us understand the different ways this issue is understood in different parts of Canada. I do appreciate the explanations that were offered by Arthur , Henry and others –progressive and good-hearted people who defended the bill, though none of you convinced me. Here is another progressive and good-hearted person whom it hurts.”

John Richards responded.

John Richards | September 29

Frances is not persuaded by those of us who support Bill 21. I am not without doubts about the law. Perhaps it will have unintended consequences and be used as an excuse for genuine bigotry.

Jewish fundamentalists have done bad things in Israel. Sikh fundamentalists have done bad things in India, in Pakistan and in Canada (most significantly killing over 300 Canadian citizens via bombs planted in two Air India flights originating in Vancouver). That said, let’s acknowledge the obvious: the main target of the law is Islamic fundamentalism. If Islamism – shorthand for Islamic fundamentalism – was removed from the equation, there would be negligible interest, in Quebec or elsewhere in Canada, in legislation.

While the primary target is Islamism, in a spirit of religious neutrality Bill 21 has also been applied to Jews and Sikhs, two other religious faiths that motivate some among the faithful to display their faith via articles of clothing. Furthermore, Bill 21 makes a symbolic move against Quebec’s Catholic tradition by removing the cross from the National Assembly.

Gareth Morley not only is unpersuaded by supporters of Bill 21. “Unlike Frances,” Gareth insists, “I am not willing to concede positive motives. Secularism is a nonsense principle.” Is it?

Bill 21 is a law inspired by the French tradition of laïcité. No doubt, some French and some Quebec proponents have racist motives but, from what I know of French and Quebec culture, the supporters of laïcité are not racist; they are primarily concerned about fundamentalist traditions of Islam and are searching for means to persuade Muslims to limit the scope of their religious faith – in other words, to separate Islam from Islamism.

France, the U.K., Belgium, Holland and Germany all have large Muslim minorities. Some of these countries have unambiguously opted for affirmation of secular values filtered by each country’s version of civic nationalism; others (such as the U.K.) have been more sympathetic to multicultural policy. In Europe, the distinction between pursuit of laïcité and celebration of multicultural tolerance is one of degree. At this point, no strategy can claim victory. All of these countries have been subject to Islamic terrorism over the last two decades and all face a serious problem of integrating a Muslim minority drawn to Islamist ideas.

While only a tiny minority have gone “all the way” and engaged in armed jihad, in all European countries Islamists have propagated a version of their faith that minimizes interaction with non-Muslims and preaches an interpretation of world events in which “Jews and Christian crusaders” are the principal source of human unhappiness. The French have probably been the most rigorous in attempts to understand the nature and appeal of Islamism.²

Nenshi is right that Bill 21 – like similar legislation in several European countries – calls upon Muslims to make a gesture of their acceptance of civic culture by removing religious symbols while at work. He then jumps to a ridiculous conclusion: “No other sizable religious groups in the province have to wear anything as part of their religious faith.” Who says these groups must wear external symbols of their faith? In my experience, in North America, most Jews, most Sikhs and most Muslims do not wear religious-inspired symbols. Nenshi would be more convincing if he acknowledged that those advocating that women wear the hijab (not to talk of the niqab or burqa) are often advocates of an unattractive and misogynist interpretation of their faith.

Perhaps laïcité, as practised in France and Quebec, will in the long run be shown to be inferior to multicultural celebration or some other strategy. In the short run, let’s acknowledge that there is a problem at the heart of 21st-century Islamic theology emanating from the Middle East – much as there was with Christian theology at the time of religious wars in 16th- and 17th-century Europe.

Gareth Morley | October 1

When I said laïcité is a “nonsense principle,” this is just a ruder way of saying what John says in his post. What is going on in the “real world” is hostility to visible Islam, with other religious minorities sideswiped and some rationalization. John, to his credit, recognizes that. But then he thinks this is okay, which is deplorable from my perspective.

The principle of “religious neutrality” is a real one. A liberal state should not be identified with any particular religious or antireligious perspective. But in the “real world,” no reasonable observer would conclude from seeing a crown attorney in Sherbrooke wearing a turban that the Quebec state embraces Sikhism. If this was the real concern, the strongest reaction would be against Christian symbols, although frankly Duplessis has been dead a long time. But as the relative reaction to Jagmeet Singh’s turban and Elizabeth May’s cross makes clear, the actual targets are minority religions associated with non-Europeans.

It doesn’t matter whether most members of a religion feel obliged to engage in a practice. If the practice is peaceful, then the state has no business banning it. Most Buddhists don’t meditate. Most Christians don’t put ashes on their forehead at the beginning of Lent. Most atheists don’t read Richard Dawkins or Karl Marx. That doesn’t make it any the less illiberal for the state to interfere.

Philip Resnick | October 2

The Charter of Rights and Freedoms heralded a major shift in Canada, with the courts coming to play a far larger role in the Canadian political arena than before. They were now in a position to override acts of Parliament in a way that had not been true until then, serving as a checking mechanism in the spirit of the separation of powers celebrated in the American constitution or in the French Declaration of the Rights of Man and the Citizen.

The Charter has also given rise to what my late colleague Alan Cairns once called Charter Canadians, a form of identity politics where individuals and groups will identify with specific sections of the Charter that speak to multiculturalism, gender equality or official language rights.

But it is worth remembering that there was an escape clause written into the Charter in the form of the notwithstanding clause. It was there because the then-premiers of Manitoba and Saskatchewan (one Conservative, one NDP), were fearful that the new powers accorded to the courts would undercut those of Parliament and the legislatures in cases where this might not be justified. And without these being spelled out in so many words, such cases might touch on core cultural and social values.

While some have chosen to elevate the Charter into the overriding feature of Canadian identity – Gareth seems to be one of these, along with figures like John Ralston Saul, Adrienne Clarkson and the editorial board of the Globe and Mail – there is reason to challenge this. For Canada, like any other country with its own specific history and cultural values, is not simply an empty slate onto which anything can be projected. And while religious toleration is certainly an important characteristic, it also need not come without limits. For example, female circumcision is still practised in many societies where fundamentalist Islam prevails. We would hardly want to legitimize it in Canada. In the same vein, I would argue, the burqa and niqab speak to practices in more traditionalist and patriarchal societies that most Canadians, including nonfundamentalist Muslims, find offensive. Why so? Because they undercut the equality between men and women that characterizes a modern-day Western society and the perfectly legitimate desire to see the faces of our fellow citizens.

Does this render us intolerant? Perhaps by the standards of extreme multiculturalism. But why should we bend over backwards to legitimize practices that come from another age and from societies so very different from our own? Or are our own core values so fluid and inconsequential that anything and everything goes?

I support much of what Bill 21 is about because it attempts to affirm the principle of secularism in a society, Quebec, which knew what religious dogmatism in the pre–Quiet Revolution era was all about. Like Henry Milner, I would have preferred to have excluded teachers from the total ban on religious symbols, but am more than comfortable with the general direction this legislation takes. And I say so because I do not consider myself a Charter fundamentalist.

Michel Seymour | October 2

I am not a Charter Canadian and I don’t need to rely on the Canadian constitution to find Bill 21 offensive. And I rely on the Quebec Charter only when individual and minority rights are concerned.

Of course, there is also a notwithstanding clause in the Quebec charter, article 52, equivalent to article 33 in the Canadian charter. There must, however, be very good reasons to justify violating fundamental rights and liberties of individuals and minorities.

These are protected not only by the Canadian and Quebec charters, but also by the 1948 Universal Declaration of Human Rights (article 18) and by the 1967 International Covenant on Civil and Political Rights (article 18). In both cases, we find the assertion that freedom of religion involves the freedom to manifest and express religious faith.

So what are the very good reasons supporting the obligation to remove the Islamic hijab, the Jewish kippa³ or the Sikh turban for a certain category of civil servants working for the Quebec government?

There are good reasons for not allowing the niqab or the burqa. We can simply appeal to issues of communication, quality of interaction, identification and security. Since these reasons have nothing to do with the interpretation of the meaning conveyed by religious signs, appealing to them is consistent with state neutrality. This issue is now being examined by the courts.

But what about the hijab, the kippa or the turban?

Anyone who interacts with women wearing the hijab in Montreal will find it baffling to hear that this religious garment is an expression of religious fundamentalism. The argument supporting such an outrageous claim is that religious fundamentalism is apparently revealed precisely in the refusal to remove the garment during working hours. What is presumably problematic is to treat this particular garment as part of one’s identity.

This argument against the hijab is based on the idea that religion is an entirely private, subjective and individual matter. It takes place only in the mind of those who exercise their freedom of thought and conscience. If this is the only acceptable way to live one’s religious experience, then indeed religious accessories are just that: accessories. They must not be seen as part of one’s identity.

However, there are different ways of living one’s religious experience: in private, in associations – and within an ethnocultural community.

Some live their religious faith through communal practices like Ramadan, Hajj, praying in the direction of Mecca or wearing a hijab, if you are Muslim. Or Hanukkah, Shabbat and Purim, if you are a Jew. Or Simran (meditation) and Sewa (selfless service) or wearing a kirpan and a turban if you are a Sikh. And these communal practices are often those of ethnocultural groups. Islam may be part of the identity of majorities in many Arab countries, as well as in Malaysia and Indonesia. Similar facts can be true of internal religious minorities.

Quebecers should know about this. For centuries, Catholicism has been part of French- Canadian identity. So it should not come as a surprise for us to see that subgroups within the Jewish, Islamic and Sikh communities in Quebec find it important to live their religious experience through community practices that partly serve to consolidate the bonds within their respective ethnocultural groups. This is how their religious practices have a bearing on their identity. They are intimately related to their ethnocultural identity.

This should not be seen as a novel claim. Religion has been connected with ethnocultural identity for thousands of years. It is a scientific fact of human cultural evolution; see David Sloan Wilson’s magisterial book Darwin’s Cathedral.⁴

So essentially, the whole issue relates to our ability to respect different postures toward religion (faith, agnosticism, atheism), different religions (Islam, Christianity, Judaism, etc.) and different ways of experiencing religion (privately, in religious associations and through different communal practices that serve to reinforce the bonds of one or many ethnocultural groups).

Various converging factors explain why we tend to be intolerant of Islam when it is practised for the purpose of reaffirming community bonds:

• It reminds us of our religious past, and most Catholics, Protestants, agnostics and atheists in Quebec think that religion belongs to the private realm.
• We are always influenced by France, and our debates have been formulated with the very same terminology and on the very same topics (including the burkini!).
• The murders perpetrated by Al Qaeda and the Islamic State since September 11, 2001, have inspired fear. They have had an impact all over the globe and have induced a generalized Islamophobia.
• Quebecers have a strong desire to distinguish ourselves from Canadians. If Canadians say that 2 + 2 = 4, some Quebec nationalists will want to argue that the answer is 5 just to mark a difference;
• Some feminists believe that the ban on the Islamic headscarf is justified because it reflects the domination of Muslim men over Muslim women.

These motivations (and a few others) explain the popular support for Bill 21. And since the current Quebec government is populist, it was able to implement the bill. Notice, however, that these motivations cannot be invoked as arguments by a government that claims to achieve state neutrality.

But those who are in favour of Bill 21 really don’t care about state neutrality, even if it is a constitutive requirement for being a secular state. In any case, factors 1–5 are not very good reasons for allowing the state to violate fundamental individual and minority rights.

Arthur Milner | October 14

The state isn’t entirely abstract. It has representatives, people with actual power, some of whom carry guns, or gavels, or red markers. Some of us believe that not only the state but also the people who represent it “must be neutral in respect to religion.”

It’s none of the state’s business which religion you adopt and moreover you can adopt any religion you like in Quebec and still be a judge, cop or teacher. Further, you can be a judge, cop or teacher and wear anything you like – except while on the job.

If the state must be neutral with respect to religion, then so must its agents, so you can’t express your religion any way you like if you’re going to be a judge, cop or teacher. It’s not the state’s business what your political views are, but you still can’t wear an “I love Jagmeet Singh” pin in court.

John Whyte | October 15

Arthur Milner writes, “If the state must be neutral with respect to religion, then so must its agents, so you can’t express your religion any way you like if you’re going to be a judge, cop or teacher.” What good news for Canadian diversity that he was either less adamantly committed to this principle in a context not involving Quebec’s distinct society, or was less effective, when an injunction was sought against the RCMP to prevent it from allowing members to wear turbans.

But in truth, his statement is useful in setting out one of the bases for regulatory restriction on religious expression: such expression can compromise the state’s religious neutrality. The other bases for this restriction are, first, that it could inflict social harms, such as assault, animal cruelty or mutilation and, second, that it could implicate the state in imposing the establishment of a specific religion as a state attribute or character.

I doubt very much that, in Canada, we believe religious identification in a public servant’s public presentation destroys state neutrality. But I suppose that one could think that some religions compel their adherents to seek advantage for fellow believers at every turn. If so, one could see state neutrality as being compromised by having overtly Islamic teachers. But if that is what is feared, why stop at regulating visible identification through dress? Why not just bar Muslims from public office or function? On the other hand, if you don’t believe religion compels favouritism in public administration then there is no basis for thinking that wearing symbols of religious identification destroys neutrality – unless you think that revealing religious identity in public is always a sign of religious fanaticism.

But it can’t actually be fear of religious favouritism that explains Bill 21. Goodness knows we have had religious icons and garb paraded around public institutions forever, simply trusting in office holders’ and public servants’ disciplined commitment to neutrality (perhaps a trust not always warranted in the case of Christian influences). There is no evidence to support a new fear of embedding religious favouritism in public services through allowing public servants’ religious identification.

What is really going on in Bill 21 (setting aside the possibility of religious intolerance toward Muslims) is disestablishmentarianism – preserving the state from identification with, and promotion of, a specific religion. This is certainly a serious enough problem (and, in fact, continues in provincial “school choice” funding when public monies go to sectarian schools beyond those benefiting from a constitutional guarantee of funding). Bill 21, though, is rooted in a particular branch of disestablishmentarianism called laïcité – that is, severing the state’s connection, including any symbolic connection, to any religion.

While it is true that Quebec has a strong religious identity and that the privileges once held by a group have been relinquished agonizingly slowly, Quebec is not now sectarian and, in light of the secular spirit of the age, reaching into many religions, Quebec is not going to become sectarian. In the present context of public values laïcité, once noble and necessary, seems a strangely anachronistic and misplaced political theory with which to suppress Islamic dress. Of course, this may not seem like a legal argument – just a 21st-century social observation. But, as it turns out, social narrative often colours our – and judges’ – belief in governments’ justifications, and hence determines constitutional law. Laïcité is undoubtedly a political value but it is rooted in overcoming state religious favouritism, not in overcoming personal religious practice. It is a perverse use of the concept to muster it to suppress religious freedom to dress as one considers fitting when morality and risk are not at stake.

Of course, we won’t have a chance until 2024 to discover whether the policy of laïcité can override religious freedom. Bill 21 used both Canada’s and Quebec’s notwithstanding clauses which took away, for five years, any legal challenge based on the human rights of free religious belief and observance and religious equality. The constitutional challenge that is now proceeding without aid of the Charter’s sections 2(a) and 15 is unlikely to succeed – although, of course, I don’t know that for sure. In five years, however, assuming that the notwithstanding clause is not renewed, courts will find that Bill 21 violates clear Charter protections (I don’t know that for sure either) and that the suppression of rights cannot be saved by the courts finding that the risks of Islamic women teaching in hijab make the law a reasonable limit on Charter rights.

If a right is abridged, the jurisdiction seeking to impose the restriction must demonstrate on a balance of probabilities that the social costs the enacting jurisdiction claims to be meeting are actual and palpable. And the enacting jurisdiction must also show that the harms addressed by the regulation outweigh the harm of eroding the human rights of Muslim women who aspire to be teachers and other classes of public servant.

And if Quebec does then renew the notwithstanding clause, the longstanding political dynamic around Quebec’s distinctiveness will be again be in play, and this could continue every five years until a Quebec government recognizes that the danger of the hijab is less than the cost of this periodic values isolation.

Of course, human rights will ultimately prevail. But in the meantime, Canada, we have to ask: how are we doing with that justice thing that we are so proud of? Good states are grounded on justice and stability. Both of them matter.

Notes

¹ Nenshi: There’s something more threatening than Trudeau’s blackface, Calgary Herald, September 2019

² I invite readers to read my review of the 600-page report on Islamism in France prepared by a major French policy institute, A Realist Approach to Islamism in France, Inroads, Winter/Spring 2019

³ Naheed Nenshi uses the term yarmulke while Michel Seymour uses the term kippa. Both refer to the same skullcap worn by some Jewish men.

⁴ David Sloan Wilson, Darwin’s Cathedral: Evolution, Religion, and the Nature of Society (Chicago: University of Chicago Press, 2002).