Quebec’s Bill 21 and the Enforcement of ‘Liberal Values’

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Bill 21 appears to believers of wide religious and political persuasions as a coercive measure foreclosing difference of many types.

The Quebec government passed a bill on June 16 barring schoolteachers, police officers, judges and other public employees from wearing religious symbols (Muslim head scarves, Jewish skullcaps, Sikh turbans and Catholic crosses, among other symbols) in the workplace. Proponents of Bill 21, or “An Act Respecting the Laicity of the State,” celebrate it as a measure critical to the preservation of Quebec’s “distinct identity” as a French-speaking province and a place where state secularism trumps everything else. The bill’s language underscores secularism’s dominant role: “It is important that the paramountcy of State laicity be enshrined in Québec’s legal order.”

This ardent defense of secularism is part of Quebec’s pushback against an “orthodoxy” that many Québécois fear will undermine “liberal values” such as women’s and LGBTQ rights — and while in this case that pushback takes the form of prohibiting religious garb, some American commentators see a connection to other areas of religious exercise currently being contested in the U.S.

In Quebec, the defense of “liberal values” is ardent, almost stubborn; Bill 21 not only passed with a wide margin (73 to 35) but has several measures built in to resist any attempts to challenge or undermine the goals of the law. For one, it includes a constitutional loophole called the “notwithstanding clause” that insulates the bill from legal challenges on the basis of free speech and religious freedom. (The notwithstanding clause is a seldom-used provision that allows government legislation to override some parts of the Canadian Charter of Rights and Freedoms for up to five years at a time. In 1980, when Canada was negotiating the division of power between the federal and provincial governments, the clause was used to appease opponents of the charter and strike a compromise.)

The bill also includes a provision that permits inspectors to verify that the law is being obeyed, predicting (accurately) that some public officials will refuse to implement it. Indeed, several mayors and school boards in Montreal who oppose the law vowed to ignore it. These officials face disciplinary measures if an inspector finds they are not enforcing the law.

Liberals have decried the verification provision, saying it creates a “secularism police force.” Critics have also raised other objections; many are concerned that the bill, while inclusive of a range of religious symbols, targets Muslim women specifically. They point, for example, to echoes of the bill in Europe: Austria in May banned Muslim headscarves in public schools. In 2011, France banned face veils and in 2016 tried to ban the modest swimsuit known as burkinis. Belgium, Austria and Denmark also ban face veils and a number of other European countries are considering similar measures. Critics also have good reason to worry that Bill 21 indicates an embrace of populism: concurrent to passing Bill 21, the government also passed a bill that would get rid of 16,000 immigration applications.

The immediate, most concrete effect of Bill 21 is that it excludes Muslims, Sikhs and Jews who observe their religion’s garb requirements from positions of public authority. While the law permits those working in the public sector to keep their positions, these individuals cannot be promoted to a higher position if they refuse to remove their religious garb. Lawyers who wear religious symbols are also no longer permitted to work for the government or represent it in court. Citizens receiving public services are also required under Bill 21 to uncover their faces for identification or security reasons.

The bill’s proponents justify this exclusion of religious individuals from public employment as necessary to ensure “neutrality”; as one supporter told The New York Times, “How can a judge wearing a Muslim head scarf be deemed neutral in a case involving a homosexual? … Diversity is important in society, but the state needs to avoid conflicts between professional duties and religion.” (The logical fallacy is obvious, as there is no causal link between clothing and behavior; a person can be non-neutral in their decision-making regardless of what they are wearing and vice versa. For example, U.S. Rep. Ilhan Omar, who wears a Muslim headscarf, recently danced alongside other participants in a Pride Parade.)

The commentator’s example alludes to a broader area where religion and “liberal values” are presumed to clash: the battle between religious freedom and sexual freedom. Some commentators have made the connection more explicit. The daughter of U.S. Vice President Mike Pence wrote a piece noting that the “underlying implications of [Bill 21] are what create the danger for religious people.” Charlotte Pence points to a Canadian court’s decision in June 2018 to deny accreditation to a Christian law school because the school had a policy prohibiting students from engaging in extramarital or gay sex. She writes: “This inherently limits the kinds of people who Canada deems able to be lawyers, essentially arguing that one who holds certain values should not be trusted with the law.” In her view, Bill 21 is just another way for the state to shut out from public service individuals who might hold “traditional” beliefs about sexuality.

Avi Schick, former deputy attorney general for New York state, agrees. In a piece for The Wall Street Journal, he comments that Bill 21 stands for the broader proposition that “religious practice is incompatible with public service, that people of faith cannot be trusted to balance their religious beliefs and civic responsibilities and that employees must choose between their consciences and careers.” In other words, the bill creates a type of “religious test” for public positions of authority, something few Americans realize is directly prohibited by the U.S. Constitution. (According to a recent Pew study, only 27 percent of respondents knew about the constitutional prohibition.)

With low rates of constitutional literacy and a culture where religious rights are increasingly contentious, the U.S. is struggling in law and public discourse to create a space for people of diverse beliefs to co-exist. In Canada, however, the government has put its thumb on the scale; Bill 21 appears to believers of wide religious and political persuasions as a coercive measure foreclosing difference of many types.

Asma T. Uddin is senior scholar at the Religious Freedom Center of the Freedom Forum Institute. Her email address is: [email protected].

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