Between Two Secularisms: Quebec’s Bill 21

By Alex Simard (PO’22)

On March 31, Québec’s ruling Coalition Avenir Québec (CAQ) introduced Bill 21, a law that would ban public employees from wearing religious symbols. Under Bill 21, a public school teacher, government lawyer, or law enforcement officer would have to remove their hijab, niqab, yarmulke, or cross during work hours. The law also requires that individuals remove religious face-coverings when receiving public services, meaning a woman would have to partially remove her niqab when boarding a public bus. The law drew immediate condemnation from civil rights groups and Justin Trudeau’s Liberal Government, but Québec Premier Francois Legault defends the law as an expression of Québec’s long-held laïcité, a French legal concept which roughly translates to the separation of Church and State.

Since assuming office, Legault’s right-of-center CAQ has cut immigration by 20 percent and proposed rigorous assimilation procedures for new arrivals. Those actions, coupled with Islamophobic rhetoric, signal that secularizing Québec is not the law’s only aim; xenophobia and misunderstanding of growing religious minorities undoubtedly plays a role. While these factors should be at the center of the ensuing debate, relying on those concerns alone paints an incomplete picture. After all, Bill 21 is both highly popular and the descendant of prior laïcité laws proposed by parties on both sides of Québec’s political spectrum.

The section of Bill 21 requiring the removal of face-coverings when receiving public services is a reworked version of a 2017 law proposed by the then-ruling centrist Liberal Party. The bill passed easily, with most of its opponents, including the CAQ, alleging it did not go far enough. Though parts of the bill were struck down in court because the law failed to establish guidelines for implementation, the law has resuscitated itself in a stronger form. This time, the Premier intends to avoid a court challenge. Canadian legal scholars agree that the law violates the Canadian Charter of Rights and Freedoms, which guarantees freedom of religion and freedom of conscience. But the Charter contains a rarely used “notwithstanding clause” which allows a Province to override it for five years. Legault plans to invoke the clause, and therefore admit the law violates the Charter.

The fact pattern raises a few questions. Why is the law so popular? Why does the provincial Liberal Party stand opposite to Justin Trudeau’s federal Liberal Party? What accounts for Québec’s secularist streak and why are similar laws unlikely to stand in the United States? Answering these questions requires an analysis of how Québec forged its vision of secularism. In this article, I’ll use French legal theorist Elisabeth Zoller’s assertion that “among Western states, the United States and France are…the only true secular republics.” The United States embraces open secularism, which emphasizes freedom of conscience, while France embraces laïcité tout court, or strict separation of Church and State. Québec’s positioning between those two models of secular statehood creates a contentious legal battleground for Bill 21.

Before examining the French and American approaches, it’s worth understanding how Québec’s history places the province between the twin traditions of secularism. In 1837, a group of Québecois, inspired by the French Revolution, revolted in hopes of establishing a secular, liberal republic. The revolt failed. The Anglophone elite, wanting to keep control of the volatile province, embraced the Catholic Church’s central role in Québecois life as a means of avoiding further rebellion. Until 1960, Catholicism was the de facto provincial religion, in charge of education and other social services. The Quiet Revolution of the 60s and 70s, which saw the rapid modernization of Québec, also saw its secularization. As its model for secularization, Québec turned to laïcité tout court, and aimed to create a government à la Française. The Canadian Federal Government, meanwhile, held on to a vision of religious expression similar to the United States’ and placed emphasis on freedom of conscience. Post-Quiet Revolution, Québec entered an era of conflict with the Federal Government as it attempted to enforce its own provincial identity, an era marked by several independence referendums. So when Québec’s Liberal Party and Legault’s CAQ attempt to pass laïcité laws, they draw from Québec’s desire to create a French state of laïcité within an “Americanized” federal structure, a desire that places the province in direct conflict with the Federal Government of Canada. How France and the United States approach secularism elucidates how Bill 21 came to be.

Québec’s Bill 21 finds it precursors in France. There, public employees are prohibited from wearing conspicuous religious symbols and in 2004, that prohibition was extended to students enrolled in state schools. What makes those laws feasible in France? Some argue the explicit mention of laïcité in the French Constitution established a nation more fervently secular than the United States. In 1905, France passed a law mandating “a strict separation between the private and public spheres,” meaning freedom of religious expression was to be assessed relative to the state. This “two spheres” theory is what ultimately drove the central premise of laïcité tout court into the 1958 French Constitution. When it’s applied, a Muslim student entering a classroom with a hijab, a conspicuous religious symbol, brings the private sphere of personal religious practice into the public sphere of a state school. The “two spheres” approach requires a purgation of religious influence from the public sphere in order to maintain the secular purity of the State, hence the law requiring the girl remove her hijab. While the “two spheres” theory influenced both Bill 21 and French law, relying on the theory without context doesn’t fully explain laïcité. A closer examination of France’s historical quest for laïcité and how that quest relates to Québec presents a more complete picture.

Much like Catholicism was Québec’s de facto religion, pre-Revolution France was a Catholic nation. The Revolution created a secular state in principle, but not in practice. For decades, the Catholic Church inserted itself in all aspects of French life. Until 1850, religion was taught in state schools and for much of the 19th century, the state only recognized Catholicism, Judaism, and a few protestant sects. In 1870, when Vatican I established papal infallibility and demanded nations govern with Catholic doctrine, republicans and religious minorities saw an existential threat to France’s flawed secular project. In response, secularist groups worked to pass the 1905 laïcité law, which, in theory, established the “two spheres.” Since then, France’s religious history is a “war between two Frances…France as a Catholic nation and…France as an heir to the values of 1789.”

No one questions who won the war. In the landscape of belief, one stands above all others, and though it doesn’t profess a deity, it does profess liberte, egalite, fraternite. Let’s use the 2004 law, which banned conspicuous religious symbols in public schools, as a case study. The law, argues modern French historian Joan Wallach Scott, was an attempt by the French government to “raise flag above faith” and promote the “values of 1789,” laïcité included.  France’s long battle with intrusive institutionalized religion necessitated an equally powerful state dedicated to the active promotion of laïque enlightenment values.  Despite its victory, the laïque (secular) French State could never divorce itself from its Catholic past and achieve laïcité tout court. Today, the religious landscape operates under the principle that “some religions are more equal than others.” French law shows less tolerance for new religious sects and cults than its secular counterparts, preferring to uphold established religions of the past. Today, the French government subsidizes private religious schools and pays their teachers’ salaries. The state owns all churches and synagogues built before 1905 and many national holidays have Catholic origins. The paradoxical coupling of those two outcomes reveals a unique French secularism, shaped by the permanence of powerful religious institutions and France’s desire for a laïque, post-revolutionary state, a coupling that doesn’t quite achieve laïcité tout court but aspires toward it.

Québec’s laïcité, like France’s, was forged by a Catholic past made heavier and more imposing by an Anglicized federal structure. The Quiet Revolution and the modern secular society it erected both pushed aside centuries of Catholic tradition and began a bold assertion of “greater constitutional authority vis a vis the federal government.“ Part of that assertion involved the turn towards France and its model of laïcité. But Québec’s circumstances, its long history of cultural, religious, and economic repression created a different laïcité. France’s war was between its Catholic past and its enlightenment values. Québec’s war is still raging, and it’s between a province wanting to assert a laïque vision and a federal structure wanting to impose its open secularism. Québec may look to France as a secular model, but its unique circumstance makes achieving that model difficult.

To an American observer, laïcité tout court might seem intolerant, even radical. That’s because the United States practices open secularism, which “prioritizes the individual’s right to freedom of conscience and religion.” The First Amendment enshrines two religious rights. The establishment clause prevents the U.S. government from promoting, directly funding, or establishing a religion. The free expression clause allows an individual to practice his or her religion without state interference. The 1878 case of Reynolds v U.S. established a “wall of separation” between Church and State. The wall isn’t meant to create “two spheres” or a state purged of religious influence. Rather, it’s meant to limit state interference in religious expression to when that expression crosses “the wall” and begins to promote religion on behalf of the state.

In 2005 when an Oklahoma school asked a girl to remove her hijab, the U.S. Department of Justice intervened on the girl’s behalf. The DOJ’s decision descends from Jefferson’s conception of “individual conscience.” In 1785, standing before a nation whose occupants belonged to countless Christian sects, many of whom were persecuted elsewhere, Jefferson wrote “almighty God hath created the mind free,” an idea that weaved its way into the First Amendment and open secularism. Free expression of religion is therefore tied to one’s freedom of speech, assembly, and petition, all rights the state is tasked with protecting. Hence, in public schools, even non-religious acts are protected. Tinker v Des Moines famously let students wear black armbands in protest of the Vietnam War. In Stull v. School Board of Western Beaver, a school’s ban on long hair was struck down.

An American or Anglo-Canadian observer looking at Bill 21 through the lens of open secularism will undoubtedly be troubled by the law’s discriminatory nature. Those concerns are more than valid. The law targets certain religious vestments and those religious communities deserve to be outraged. When Francois Legault employed the notwithstanding clause and admitted to violating the Canadian Charter, he admitted to violating open secularism. He saw the issue through the lens of laïcité tout court. Québec, since 1960, has transformed itself from a Catholic nation to laïque state just as France heaved the Church off its back in the early 20th century. But unlike France, Québec bore a dominant, Anglicized federal structure. When the English majority tolerated a powerful Catholic Church in Québec, it created a North American anomaly, one that gave Québec the same motivations as France, one that in some ways required a “two spheres” approach.

Today, one-fifth of Canada’s population is foreign-born. The nation is more diverse than it has ever been and minority religions are growing throughout all provinces. Despite the notwithstanding clause, Bill 21 will face legitimate and needed court challenges over the law’s discriminatory intent. The left-wing Québec Solidaire, with strong backing from minorities, young people, and urban populations, has partnered with the Trudeau Ministry in criticizing the law. Québec is not France; it exists within an open secularism and those values seep into its governance, its population, and its courts.

Laïcité tout court and its emphasis on limiting religious expression relative to the state often involves laws that impede on freedoms thought sacred in openly secularist societies. It’s a just reaction for an American or Ontarian observer to condemn violations of those freedoms in laïque states, but it’s unwise to stop at condemnation and not consider and analyze the roots of the different model. If Bill 21 is a failure to recognize difference and hence the individual consciences of religious minorities, to fail to consider the difference between laïque states and anglophone models is to err in the same way. It threatens to cast Québecers in an unexamined, unfocused, and generalized light. As outside observers, it’s necessary, even for a moment, to peer through Québec’s secularist lens, different as it may be, and try to understand its history of fardels and freedom and why it aspires for laïcité tout court.

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