I do not envy the judges of the Supreme Court of Canada. Quebec’s Bill 21, enshrining the secular nature of the province, will soon land on their desks. The bill bans the wearing of visible religious symbols by public servants in positions of authority including, most controversially, school teachers.
The Supreme Court will, in essence, be asked to choose between two opposing views of the place of religion in society. Freedom of religion is guaranteed in the Canadian Charter of Rights and Freedoms. However, is that freedom without limits? Does the state have the right to set limits on religious practices where they collide with other values held dear by society ─ the interdiction of polygamy being an example? The answer is not always obvious. Taking an example nearer to Bill 21, does asking a female Muslim school teacher to remove her hijab in school violate her charter right to religious freedom?
For most non-francophone Canadians, the answer to the last question is most probably “yes,” but the opposing answer is equally conceivable. I am not a lawyer. My focus as a social scientist is not on legal arguments, but on understanding why societies view religion differently. On this ─ perhaps more so than any other cultural attribute ─ French Quebec has evolved along a different path from the rest of North America.
François Legault’s I-win-you-lose gambit
At stake is not only the court’s interpretation of religious freedom, but also the use of the notwithstanding clause (section 33 of the charter), which limits the power of the courts to strike down provincial legislation, with only limited exceptions. This section was invoked by Quebec, precisely to shield Bill 21 from negative court rulings.
To my knowledge, no major political figure or opinion-maker outside Quebec has come to the defence of Bill 21. The Canadian Civil Liberties Association has unambiguously declared it to be an attack on religious freedom. The bill continues to be denounced as discriminatory, even racist, and proof yet again of French Quebec’s ingrained xenophobia. This is not to say that the divide is purely linguistic, but support for Quebec’s secularism law has come almost exclusively from francophone circles.
Bill 21 has so far survived in the courts, protected by the notwithstanding clause. In his April 2021 ruling, Justice Marc-André Blanchard of Quebec’s Superior Court openly expressed his displeasure with the bill’s intent and Quebec’s invocation of section 33, but ruled he had little choice but to uphold it. In a bizarre aside ─ bizarre to me at least ─ he also ruled that Bill 21 violated minority-language educational rights (where section 33 cannot be invoked), and was consequently inoperative for Quebec’s English schools.
Before I proceed, let me make one thing clear. I think Bill 21 is a mistake, unnecessary, petty and needlessly confrontational. Quebec is already a profoundly secular society. Going into battle with the rest of Canada over a bill that, in reality, affects only a fairly small number of individuals (which does not make it a lesser moral issue) is a wasteful use of political capital and goodwill.
But the bill is about Quebec politics. One does not a need a degree in political science to understand that it is a savvy political manoeuvre by Premier François Legault, allowing him to consolidate his nationalist credentials and pull yet another rug from under the Parti Québécois. Whichever way the court rules, Legault wins. If the court expresses its displeasure with both the bill and the use of the notwithstanding clause, Legault will predictably respond: “I told you so. English Canada doesn’t understand Quebec. We were right to invoke the notwithstanding clause.” If the court rules that Bill 21 is in fact compatible with the charter, well then, it’s total absolution. Legault wins again.
The latter ruling (or rather written opinion, because the bill remains shielded by section 33) is highly unlikely. However, if that were to happen, the outcry outside Quebec would be deafening. One can already see the editorials: shame, treason, a betrayal of Canadian values.
That won’t happen. A critical ruling, generally disapproving of Bill 21, is the likely scenario. This is a pity, not only because Quebec comes out yet again as the cultural villain, along with an indirect vindication of the notwithstanding clause, but also because it implicitly dismisses the possibility of more than one view of the place of religion in Canada.
The other view: A short history lesson
Let us therefore try to understand why many opinion-makers in Quebec, including highly respected scholars, support Bill 21. It is chiefly on this social plane that the cultural divide plays out. The religious symbol ban does not lack popular support outside Quebec, where it is approved, according to a July 2019 poll, by one-third of respondents. In Quebec, the approval rating is 65 per cent, with support strongest among less-educated cohorts. Support may indeed conceal racist sentiments, but this does not necessarily follow.
Why, then, might “right-thinking” Québécois, who see themselves as tolerant, support the bill? A history lesson is in order. Until Quebec’s Quiet Revolution of the 1960s, which took education out of the hands of the Catholic Church, French Quebec was for all practical purposes a theocracy, “that priest-ridden province.” Almost every Québécois of an older generation ─ especially women ─ has a horror story of how the church influenced their lives. For politically aware Québécois, freeing the province from the grips of the church was a necessary step on the road to modernity, to building a secular, more egalitarian society, freed from the evils of superstition. Among the visible changes brought by the Quiet Revolution was the sartorial transformation of school teachers, as the good sisters of the old teaching orders traded in their religious habits for more modern attire.
Religion came to be viewed in a new light, at least by many. It was seen as a social construct, to use sociological jargon, that a society, and thus also individuals, can choose to adopt or to discard. After all, did not the majority of Québécois choose to cease practising their ancestral religion after the Quiet Revolution? Studies that measure religious practice suggest that the once priest-ridden province is now the most secular society in North America, a paradox that will undoubtedly not escape the reader.
Quebec’s history has, in short, shaped a distinct perspective on religion: a more detached, less indulgent view than is the North American norm. If I may be forgiven a bad pun: religion in Quebec is less sacred. If Quebec were to print its own currency, the motto “In God We Trust” that is inscribed on every U.S. greenback would be unthinkable.
Religion and race
Which brings me back to Bill 21. If the state is to be truly secular, does it not follow that the state should ask its servants, notably those in situations of authority, to refrain from displaying religious convictions? Why is this different from asking them not to display political convictions? Is it not imperative that citizens be assured that civil servants are unprejudiced in their regard? Here, let me quote Boucar Diouf, an astute observer of Quebec society who it would be difficult to accuse of racism or Islamophobia: “How would an immigrant of Palestinian origin, contesting a conviction, feel in front of a judge wearing a kippah? Inversely, how would a young driver wearing a kippah feel faced with a policewoman wearing a hijab who just gave him a ticket?” (My translation). Clearly Diouf does not view Bill 21 as an abomination ─ not without fault, perhaps, but not intrinsically discriminatory or racist.
We are back to how society views religion: Is it an inalterable attribute of a person’s essence, or is it a matter of choice, at least in part? Skin colour and facial traits – race – are not a matter of choice, nor are gender and sexual orientation. But clothing, hairstyles, etc.? That the wearer is sincere in his/her convictions is not at issue. But, again, why should deeply held religious convictions be placed on a higher moral or legal plane than other deeply held convictions (say, political expression, environmentalism or pacifism) that an individual might feel compelled to publicly display at work?
Not all symbols are equal
Finding the “right” answer is further complicated by the differing messages of different religious symbols. Some are less, some are more, at odds with the values of broader society. Religion exits the private domain and enters the public sphere when a visible religious symbol is worn. But all are not equal objects of public controversy. The kippah (a collateral victim in this saga) never aroused much public debate, to my knowledge, perhaps because it is difficult to associate with gender equality or other social issues.
It’s not surprising that public debate in Western societies has focused almost exclusively on the Islamic headscarf (hijab), seen by its detractors as an affront to liberal values (I leave the niqab and burqa aside, because their ban for civil servants is less controversial). In Quebec, among the most vocal supporters of Bill 21 are Muslim women, who understandably see parallels between their struggle and that of their Quebec sisters half a century earlier. Many originate from the Maghreb, where the battle between reformers and Islamists continues to rage unresolved.
Quebec’s historical relationship with religion and its distinct legal heritage, added to its large francophone Muslim community, put Quebec closer on many issues to the nations of continental Europe than to anglo North America. France, several German Länder (states), and other European subnational jurisdictions have enacted legislation similar to Bill 21. The German Federal Constitutional Court ruled in 2003 that Länder could ban the wearing of Islamic headscarves by female teachers, and that this did not infringe the constitutional protection of freedom of religion.
Let me end here. I’m glad that I’m not a Supreme Court judge. I would spend numerous sleepless nights. My personal inclination would be to let female school teachers keep their hijabs, if they must. But I also understand the arguments for a ban. With public service come responsibilities, among which is refraining from advertising one’s faith.