You know when you’re in the middle of a public debate and you want to scream y’all, hey, Y’ALL! YOU’RE DOING IT WRONG!! I’ve been feeling this way about secularism since it was but a glint in Quebec Premier François Legault’s be-crucifixed National Assembly.
Laïcité is a concept better understood in French. Because that’s where it got started, in France. It wasn’t friction-less, to put it mildly. But today, walking around in Paris, you don’t feel the same tensions anymore. They’ve kind of got it mostly figured out. People are free to worship but the state is rigorously a-religious.
I am, as I’ve written elsewhere and more than once, a huge supporter of state secularism. I am also near-vitriolic in my opposition to most organized religions. Blame a spectacularly hypocritical upbringing in a fake-catholic Quebec for that one. That said, I have zero problems with anyone practicing whatever religion suits them best, provided they don’t infringe on other people’s rights.
Which, I think, is where most people are. Religion is something most of us think belongs in the private sphere. Not that you have to hide who you are and what congregation you belong to. But your beliefs and the way you choose to live your life are your choice, not mine. They only apply to you. I can’t stop you from doing your thing, and you can’t push your beliefs onto me no matter how absolutely for-sure convinced you are that yours is the only true way.
The only way to live peacefully together and enjoy our constitutional freedoms to believe and say what we want is for the state not to be seen as supporting any religion. That, in essence, is secularism. It’s pretty simple.
If the Quebec government had written Bill 21 sur le sens du monde, like we say where Legault’s from, instead of making such a fucking mess of it by extending it so far as to prevent anyone working for the government to display any visible religious sign, we wouldn’t be where we are. But no. As written the law prevents a primary school teacher from wearing a hijab or a bus driver from wearing a visible Star of David around their neck.
I don’t mean any disrespect to bus drivers and third-grade teachers, but they are not the state and they represent nobody other than themselves. The crucifix that until 2019 was displayed above the Speaker’s chair in the Quebec legislature, on the other hand, did have a smidge of state religiosity about it.
When, in 2018, he was asked how he managed to avoid spontaneous combustion promoting secularism under a crucifix, Legault tried to gaslight everybody into thinking the crucifix was not a religious symbol.
It took about a year for Quebecers to convince their incomparably dense premier to remove that crucifix.
I rehash all this unpleasant and illogical background because it’s needed to understand why I vehemently object to Bill 21 as written, including its preemptive use of the notwithstanding clause.
I think the notwithstanding clause is a fine instrument when used sparingly, with proper oversight from the courts. You know, the way it was intended. In all the years since its entry into force in 1982, it hasn’t really caused serious headaches except in Quebec — the memorable Ford decision in 1988 on the constitutionality of Bill 101, the Charter of the French Language, that was clearly anti-constitutional as it violated s. 2 on free expression. The Quebec government, not unreasonably, argued that violation was justified to protect the French language and culture in a sea of North American English, and used the notwithstanding clause to shield itself from a Charter challenge. The case is still the best authority on the use of s. 33 and you can read the whole entire thing here.
In 2021, I wrote this about the ongoing challenge to Bill 21, which I still believe word for word:
I support secularism. I want the laws to be areligious. I want independent judges wearing boring neutral clothes interpreting those laws. I don’t want any god being used as an excuse to regulate human affairs. You don’t need to live in Texas to understand what a horrible idea this would be.
Teachers can have influence on their pupils. As a parent, that’s certainly what I hope for. But nobody, not even the premier and his twisted failure to understand logic when it comes to what constitutes religion, can say with a straight face that teachers have as much coercive power over anyone’s liberty as a judge or police officer.
Preventing teachers and most public servants (those without coercive power) from wearing religious symbols has nothing to do with secularism and everything to do with trying to make people whose identity markers can’t be tucked discreetly under their shirt feel extremely unwelcome.
Secularism as a principle is well worth defending. Provided we understand it applies to the state, not school teachers.
Yeah, OK, but then what?
At the risk of stating the obvious, the Quebec government decided not to learn any lessons from its long list of constitutional losses over the decades and wrote Bill 21 all wrong. It’s been in court since before the ink on it was dry and is headed to the Supreme Court soonish and everyone is itching to see what the nine justices will do to the notwithstanding clause. Me, I’ve been saying since the 1990s that the Supreme Court would take the first reasonable opportunity before it to strike it dead, since it’s a direct challenge to judicial supremacy when it comes to calling constitutional balls and strikes. It would certainly cause an epic constitutional kerfuffle with some provinces that see the notwithstanding clause as their only protection against a rights-friendly Supreme Court.
All sorts of people have all sorts of very strong opinions on this issue, as you can see by perusing the list of intervener factums. The ruling, whenever it does come, may cause some folks to rend their garments. Maybe this will finally lead us to make amendments to our constitution that are very necessary, such as removing god from its preamble and — oh yeah — getting rid of provinces.
More likely, the ruling will strike Bill 21 and force the Quebec government to write its secularism law the right way. And that would be good enough.