The Quebec government’s renewed attempt to legislate state secularism in Bill 21, An Act respecting the laicity of the State, is hostile to religious minorities. It rests on a conception of secularism that is neither tenable nor desirable in what has become a vibrantly multicultural province. Still, the way forward in fighting the bill is by democratic means, not legal means.

Yes, Premier François Legault’s government has the power to pass the bill, as well as the power to insulate it from judicial review via the notwithstanding clause. But the silver lining of this lamentable episode is the possibility of an energized democratic debate over accommodating the demonstrated tensions around immigration, multiculturalism, and laïcité (secularism) in modern Quebec.

This legislation, which stems from a Coalition Avenir Québec campaign promise, would enact a French-style model of secularism that purports to protect religious freedom by aggressively maintaining a state that is irreligious. The French model has led to such absurdities as hijab-wearing Muslims in Paris attending separate Catholic schools, where they are permitted to wear religious attire. It stands in direct contradiction to the broad spirit of protecting religious freedom in Canadian constitutionalism.

The Quebec bill’s first chapter describes “religious neutrality” and “freedom of religion” as principles informing the secularism of the state. Under Bill 21, Orthodox Jewish civil servants will not be permitted to wear the kippah; Muslim women will not be allowed to wear the hijab. By invoking the notwithstanding clause pre-emptively, the Legault government is trying to insulate the bill from potential Charter of Rights and Freedoms challenges.

Nevertheless, restricting the ability of “state agents” to wear religious symbols will clearly violate non-trivial and sincere exercises of freedom of religion substantively—although the notwithstanding clause renders the law constitutional. In a seminal case, R. v. Big M Drug Mart, the Supreme Court outlined freedom of religion as “the right to manifest religious belief by worship or practice.”

Legal scholars have challenged Bill 21’s constitutionality in spite of its invocation of the notwithstanding clause. Some have raised the possibility of challenging the bill as outside of the province’s power (ultra vires). We do not agree with these scholars: Quebec has wide latitude to amend its provincial constitution concerning how agents of the state will relate to religion in their official functions.

Also unconvincing are suggestions that Bill 21 violates the Charter’s guarantee of gender equality contained in section 28, which some insist cannot be overridden by the notwithstanding clause. The government has made it clear that it sees its muscular commitment to the state’s secular face to be the epitome of a commitment to gender equality.

Above all, we consider these legalistic arguments a distraction. The impulse to dismiss laïcité as unconstitutional threatens to take away from the real work of making the democratic case for protecting religious freedom. The threat Bill 21 poses to religious freedom is an opportunity for democratic renewal and a collaborative approach to fleshing out important rights. Debates over rights in Quebec have historically been more heavily concentrated around the provincial legislature and politicians than in the rest of Canada. Though Bill 21 shocks the rest of Canada with its bold willingness to curtail the rights of religious minorities, the legislative process should also impress us with its tradition of active debate.

In truth, outside of Quebec, questions of rights are more often left to the courts, and the results can wind up overriding rights in ways similar to Bill 21. Consider the recent case of Hutterian Brethren v. Alberta. The Supreme Court found that the Alberta government was entitled to demand that members of a Christian sect submit to a photograph, which their religion forbade, in order to receive a driver’s license. Complacent deference to the courts helped ensure that the Alberta legislature had no voice in resolving this violation of religious liberty. One of the most regrettable side effects of the current emphasis on Charter litigation for resolving disagreements over fundamental rights is an atrophying of the democratic process as a forum where rights are debated, articulated and enacted.

We encourage Quebecers to make their views about the bill known to their members of the National Assembly (MNAs). Already, thousands have marched in the streets of Montreal to protest the legislation. The English Montreal and Lester B. Pearson school boards have said they will not enforce the bill. An open letter signed by 250 Quebec academics denounced the bill as helping to make people from religious minorities more of a target.

And the use of the notwithstanding clause is not the end of the story for Bill 21. If Legault’s government does not heed the public’s concerns, it could be voted out in the next election. Recall the Charter of Quebec Values, then-Parti Québecois leader Pauline Marois’s similarly nefarious attempt to legislate heavy-handed “religious accommodation.” The bill was widely presumed to have contributed to the PQ’s loss in that election.

Whether or not Quebec’s new attempt to legislate laïcité succeeds, it is a potent reminder that rights should not be taken for granted, nor left to judges. They require the thoughtful participation of the people themselves.

Photo: People hold up signs during a demonstration in Montreal on April 7, 2019, in opposition to the Quebec government’s newly tabled Bill 21. THE CANADIAN PRESS/Graham Hughes

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Joanna Baron
Joanna Baron is executive director of the Canadian Constitution Foundation, a legal charity that defends Canadian constitutional rights.
Geoffrey Sigalet
Geoffrey Sigalet is a postdoctoral fellow at McGill's Research Group on Constitutional Studies and a research fellow at Stanford Law School's Constitutional Law Center. He earned his PhD at Princeton University in 2018. His research concerns theories of judicial review, constitutional interpretation, and in particular the idea of "dialogue" between courts and legislatures about bills of rights.

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