Quebec government’s “laicity” legislation preventing public servants from
wearing religious attire or symbols on the job violates protections in the Charter
of Rights and Freedoms, say opponents.
The Coalition Avenir Quebec, which tabled Bill 21 in the national assembly March 28, has vowed to use the notwithstanding clause of the Canadian charter to override any court challenges.
Bishop Noel Simard, president of the Assembly of Catholic Bishops of Quebec said he understands why “state institutions want to declare their neutrality.”
That neutrality, however, “must not restrain the fundamental rights of the individuals and the communities to express their religious and spiritual convictions,” to live according to those convictions, and to express them in the public square.
“The wearing of religious signs or clothing is a clear case of the exercise of religious freedom,” said a statement from the Quebec bishops. “Restricting in any way this fundamental freedom should be done only on the basis of grave and unassailable reasons.”
The bishops said much of the debate is fueled by the presence of veiled Muslim women and stressed targeting these women goes contrary to the importance of integrating them into society.
The bill requires individuals receiving government services to uncover their faces for identification or security purposes. Employees providing government services must have uncovered faces.
Bishop Simard noted polls show the population of Quebec is about 75 per cent in favour of the bill.
“People on the street who are in favour of the bill are often happy enough to point the finger at Quebec’s bad experience with Catholicism, although I suspect government is more concerned with Islamic influences at this point than with Christian ones,” said Douglas Farrow, a professor of Christian thought at McGill University in Montreal. “I don’t know whether they have any specific reasons to be concerned with either, but there is a fair bit of prejudice against both.”
Threatening the use of the notwithstanding clause is “a clear indication that Premier (François) Legault and his government know they are violating the charter,” said Don Hutchinson, principal and CEO of Ansero Services, an organization working to promote and partner on religious freedom.
Hutchinson said the CAQ government has taken a bad piece of legislation from the previous Liberal government “and made it worse.”
Hutchinson, author of Under Siege: Religious Freedom and the Church in Canada at 150, pointed out the Quebec government is disregarding the Supreme Court of Canada’s decisions on the principle of state neutrality, which holds that “governments are neither to favour nor hinder any particular religious group or non-religious group in the practices of their beliefs.”
In favouring laicity, the Quebec government is declaring that it “favours atheism,” Hutchinson said.
Farrow said it is not possible for a state to be neutral. “No policy of any real importance is unconnected to some sense of the common good, and some sense of what it means for human beings to flourish together,” Farrow said. “They inevitably have some kind of anthropology or theological idea behind them.”
The word laicity roughly corresponds to the ideology of secularism, reflecting the historic battle that first took place in France and more recently in Quebec to “liberate the people from the clergy” because clericalism was so strong, Farrow said. “The whole business of saying to the Church ‘hands off our public life’ is understand as a transition from a kind of clericalism to an emphasis on the peoples’ ability to determine things for themselves.”
Where in Quebec “the paternalistic state was once both religious and bureaucratic and civil, it’s now just civil (with) a civil religion of secularism,” Farrow said.
Iain Benson, a Canadian constitutional lawyer now teaching law in Australia, said Bill 21 imports an American concept of “separation of Church and state) that has never been part of the Canadian understanding.
Canada has a cooperative approach to Church and state “in which funding, which after all comes from all citizens including religious ones, can be fairly divvied out by the state to religious projects – think of hospitals and educational institutions – that serve the common good,” Benson said.
Bill 21 has a grandfather clause for those already working in publicly funded jobs to retain their religious attire as long as they do not get promoted or move to another job.
“As the English press has pointed out, the grandfather clause requires a kind of head count,” said Farrow. This would mean “you create a massive file of people who are explicitly religious and identified by certain religious symbols.”
“We don’t do that,” said Farrow. “We don’t keep track of those things and we don’t want to keep track of those things.”
“The grandfathering is a double-edged sword,” he said. “It creates a category of citizens who are special, who have identified themselves by way of religious symbols. People don’t like that and they have good reason not to.”
Farrow said the confusion of laicity or secularism with state neutrality was exemplified in the recent controversy over the removal of the crucifix from the Montreal city hall.
Montreal Mayor Valérie Plante argued “‘We’re in a new era and in that era we don’t subscribe to any religious symbolism,’” Farrow said.
“She’s talking about an endorsement of a new view of history, in which the coming of the Christ, either the first or second, is irrelevant,” Farrow said. “Our understanding for the past 2,000 years is marked off by the coming of Christ. If she says, ‘We no longer think that,’ she’s taking sides.”
Bishop Simard said Quebec bishops “do not have a problem with moving the crucifix out of the chamber.” The bishops were not the ones who placed the crucifix there, and they are not the ones removing it, he said.
“We would like the crucifix to stay there, but we won’t start a campaign to oppose removal,” he said, adding he hoped it wouldn’t be replaced with something else.
These religious symbols are not only part of our tradition and patrimonial heritage; (the crucifix) is a sign of faith, of the love of God giving his son to bring us salvation out of love,” Bishop Simard said.
“It’s not only an object that hangs on the wall, it’s a sign of faith, which is still important and present in our time, even though we are living in a very secularized society.”
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