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WHAT IS THE TRUE PURPOSE OF QUEBEC’S BILL 21? Phil Lord McGill University, Faculty of Law March 2020
WHAT IS THE TRUE PURPOSE OF QUEBEC’S BILL 21?
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WHAT IS THE TRUE PURPOSE OF QUEBEC’S BILL 21? Phil Lord1 This paper explores two contrasting perspectives on Bill 21, Quebec’s secularism law: the first, which has dominated the public debate, analyses whether Bill 21 is a suitable method to achieve its main stated aim of promoting the equality of men and women, while the second analyses the social and historical context which likely caused Quebecers to afford great importance to state secularism. The second perspective helps recast the debate regarding Bill 21. This paper concludes that the second perspective suggests that Bill 21 may be a symbolic act, a way for Quebecers to further break free from an oppressive legacy and constitutively assert their identity. To the extent that one accepts this claim, the issue of whether Bill 21 achieves its main stated aim is of little importance. Keywords: Quebec, Bill 21, secularism, state secularism, discrimination, Islam, religion, law and religion, hijab, legal realism
CONTENTS CONTENTS.......................................................................................................1 INTRODUCTION ...............................................................................................2 I. A PURPOSIVE ANALYSIS OF BILL 21 ............................................................3 II. BILL 21 AS A SYMBOLIC AND CONSTITUTIVE ACT......................................5 CONCLUSION ...................................................................................................7
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LL.B. (McGill, Dean's List), B.C.L. (McGill, Dean's List), ACIArb. I wish to acknowledge Kristina Kékesi-Lafrance, Jean Carl Denis, and Lydia Saad for their thoughtful comments on an earlier draft. I am also grateful to Lydia Saad, Alec Sader, Élisabeth Lachance, and Olivier Lirette for their attentive proofreading of this article. I, finally, wish to recognise my privileged background as a white, educated male. It is crucial that the public debate regarding Bill 21 welcome diverse perspectives, including those of people directly affected by the bill.
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WHAT IS THE TRUE PURPOSE OF QUEBEC’S BILL 21? INTRODUCTION
Much has been said and written about An Act respecting the laicity of the State,2 more widely known as Bill 21. The bill,3 most notably, makes it illegal for public servants in a position of authority to wear religious symbols.4 The ban is broader than that proposed by prior governments: it encompasses religious symbols, rather than just “ostentatious” religious symbols,5 and the definition of persons in a position of authority encompasses teachers.6 Though the bill is supported by a majority of Quebecers, it has proven particularly controversial in the rest of Canada.7 It made its way into the last federal election, where all parties (except for the Bloc Québécois) opposed the bill.8 Much of the debate has revolved around whether the bill achieves its main stated aim of promoting the equality of men and women.9 In this paper, I explore two contrasting perspectives on Bill 21: the first, which has dominated the public debate, analyses whether Bill 21 is a suitable method to achieve its main stated aim, while the second analyses the social and historical context which likely caused Quebecers to afford great importance to state secularism. The second perspective helps recast the debate regarding Bill 21. I conclude that the second perspective suggests that Bill 21 may be a symbolic act, a way for Quebecers to further break free from an oppressive legacy and constitutively assert their identity. 2
Bill 21, An Act respecting the laicity of the State, 1st Sess, 42nd Leg, Quebec, 2019 (assented to 16 June 2019), SQ 2019, c 12 [Bill 21]. For more on the use of the word “laicity,” see Section I, below. 3 Though the bill, of course, became a law, I use, in this paper, the nomenclature which has been widely used in the public conversation regarding Bill 21. 4 See Bill 21, supra note 2, s 6. 5 See e.g. Bill 60, Charter affirming the values of State secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests, 1st Sess, 40th Leg, Quebec, 2013 (never assented to). 6 See Bill 21, supra note 2, Schedule II, s 10. 7 See Philip Authier, “Majority of Canadians Disapprove of Bill 21, but Quebecers Are in Favour: Poll”, The Montreal Gazette (6 August 2019), online: <montrealgazette.com/news/local-news/a-new-poll-shows-support-for-bill-21-is-built-onanti-islam-sentiment> , which summarises the data on this point. 64% of Quebecers are in favour of the bill, while 59% of Canadians are not in favour of it. 8 See Radio-Canada, “Le débat des chefs fédéraux 2019” (11 October 2019), online (video): YouTube <www.youtube.com/watch?v=68hBSrw_qvw> . 9 See e.g. Radio-Canada, supra note 8, Jennifer Selby & Natasha Bakht, “Opinion: Bill 21 Is a Setback for Women's Rights”, The Montreal Gazette (9 April 2019), online: <montrealgazette.com/opinion/opinion-bill-21-is-a-setback-for-womens-rights> and Jonathan Montpetit, “Religious Symbols Ban Pits Quebec Feminists against Each Other”, CBC News (16 May 2019), online: <www.cbc.ca/news/canada/montreal/bill-21-quebecfeminists-on-opposite-sides-of-religious-symbols-ban-1.5139422> .
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WHAT IS THE TRUE PURPOSE OF QUEBEC’S BILL 21?
To the extent that one accepts this claim, the issue of whether Bill 21 achieves its main stated aim is of little importance. Section I introduces the first perspective. Section II introduces the second perspective. I, then, conclude.
I. A PURPOSIVE ANALYSIS OF BILL 21 The first perspective adopts a traditional view of law as a tool to effect social change. Sally Falk Moore describes this view (to then criticise it). She states: [I]t is tempting to think that legal innovation can effect social change. Roscoe Pound perceived the law as a tool for social engineering. Some version of this idea is the current rationale for most legislation. Underlying the social engineering view is the assumption that social arrangements are subject to conscious human control, and that the instrument by means of which this control is to be achieved is the law.10 HLA Hart similarly states that some laws are meant to provide a “motive for abstaining from [certain] activities.”11 We need only look to the beginning of the bill to see its main stated aims. As its name suggests, the bill is meant to further the “laicity” of the State (the legislator capitalises the “S”). The word “laicity” refers to the separation of church and state.12 (A more common word, which I use in this paper, is “secularism.”) The explanatory notes indeed begin as follows: “The purpose of this bill is to affirm the laicity of the State and to set out the requirements that follow from it.”13 State secularism is not the goal in itself. The preamble indeed reminds us that “the Québec nation attaches importance to the equality of women and men.”14 The bill closely ties secularism to the equality of men and women. The bill’s two main mechanisms to achieve its stated aim are the aforementioned ban or “prohibition on wearing religious symbols”15 (covered by section 6) and the requirement that public services be given and 10
“Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study” (1973) 7:4 Law & Soc’y Rev 719 at 719. 11 The Concept of Law, 3rd ed (Oxford: Oxford University Press, 2012) at 27. 12 See e.g. Bill 21, supra note 2, s 2. 13 Ibid. 14 Ibid. This principle is also found in section 2. 15 Ibid, Chapter II.
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received “with face uncovered”16 (covered by sections 7-10). The legislator believes that banning public servants in a position of authority from wearing religious symbols and requiring that public services be given and received with face uncovered will further the equality of men and women. Most people seem to have adopted this perspective. The public debate regarding Bill 21 has, indeed, focussed on whether it provides effective tools to achieve its main stated aim. This debate is underlain by the assumption that the bill is a tool to effect social change and that it should, therefore, be judged on whether it effectively achieves such social change. More specifically, the public debate has mostly centred around the hijab, a veil worn by some Muslim women.17 The prohibition on face coverings has been interpreted (probably accurately) as targeting Muslim women. The hijab is seen as a tool of oppression, as men force women to wear it. The fact that only women wear the hijab is considered a symbol of the inequality of men and women in the Islamic faith. Bill 21 – and its prohibitions of religious symbols and face coverings – is a legislative tool to effect social change. It is meant to force women to take their hijab off (at least to give or receive public services or to be public servants in a position of authority). Bill 21 is, therefore, a tool to enfranchise Muslim women and free them from oppression. For supporters of Bill 21, it is an effective tool. For opponents, it is not. Some opponents indeed believe that Bill 21 will not successfully “free” Muslim women. They believe that, when faced with a choice between their religion and public service (or access to public services), Muslim women will choose their religion. They believe that Bill 21 will, therefore, simply prevent Muslim women, an already marginalised community, from obtaining (or keeping) employment in the public service and accessing basic and essential public services – further marginalising them. As mentioned in the previous paragraph, both positions assume that the bill’s purpose is to achieve its stated aim of furthering the equality of men and women and that the bill should, therefore, be judged on how well it achieves this stated aim. The positions are opposed but commensurable. This section has explored a purposive view of Bill 21, in which law is seen as a tool to effect social change and evaluated on whether it effectively effects such change. The next section introduces a different perspective of Bill 21 as a symbolic and constitutive act. 16
Ibid, Chapter III. See e.g. Radio-Canada, supra note 8, Selby & Bakht, supra note 9, and Montpetit, supra note 9. 17
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II. BILL 21 AS A SYMBOLIC AND CONSTITUTIVE ACT The second perspective consists of seeing law not as a tool to effect social change but as deeply embedded in its social and historical context. Moore also refers to this contrasting view. She states: [While in the first perspective, law] is abstracted from the social context in which it exists, and is spoken of as if it were an entity capable of controlling that context. … [In the second perspective,] ‘it is society that controls law and not the reverse’ … Law and the social context in which it operates must be inspected together.18 Rod Macdonald also encourages us to attend to the context surrounding a norm.19 Our starting point can once again be the bill’s explanatory notes, which begin as follows: “The purpose of this bill is to affirm the laicity of the State and to set out the requirements that follow from it.”20 Instead of asking what the bill is trying to do or how it is trying to do it, we first ask what led Quebecers to care about the issue of state secularism. The bill’s preamble states: [T]he Québec nation has its own characteristics, one of which is its civil law tradition, distinct social values and a specific history that have led it to develop a particular attachment to State laicity[.]21 I agree. This “specific history” unequivocally includes the Catholic Church. Quebec’s ties to the Catholic Church date back to the province’s founding. While an exhaustive review of Quebec history on this point is unfortunately beyond the scope of this paper, we know that Quebec was first founded as a Catholic colony22 and that Catholicism played a key role in the daily life of Quebecers throughout the centuries that followed Quebec’s founding.23 Through the British Conquest of 1760, the Catholic Church maintained its
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Moore, supra note 10 at 719 [footnotes omitted]. Roderick A Macdonald & Jason MacLean, “No Toilets in Park” (2005) 50 McGill LJ 721. 20 Bill 21, supra note 2. 21 Ibid. 22 See Robert Choquette, Canada’s Religions (Ottawa: University of Ottawa Press, 2004) at 54-56. 23 Ibid at 55, 117, 118, 123, and 124. 19
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prominent position.24 The Church’s position meant that it had influence over government affairs. It is only some 250 years after Quebec’s founding that this influence started to wane.25 Regarding government sanctioning of the Catholic Church as the official church of the colony, historian Robert Choquette writes: This establishment included government subsidies of many kinds, in the form of land grants, direct subsidies, and salaries. It also included direct and indirect control of the established churches by government, in the form of nomination bishops, approval of pastoral appointments, approval of church budgets, or of monitoring clerical pronouncements. … The established churches became, for all practical purposes, departments of state and their clergy public functionaries.26 The Church’s involvement in state affairs continued through the 20th century. It is only in the 1960s, during a period known as the Quiet Revolution, that the government created ministries to manage healthcare and education, both of which had thus far been controlled by the Church.27 State secularism was, therefore, a key part of the Quiet Revolution. During that period, it became enshrined in the identity of the Quebec people. It played a fundamental role in a period which defined Quebec. The Quiet Revolution was not simply a defining period in Quebec history. It followed a period of conservative policies under Premier Maurice Duplessis, known as the “Grande Noirceur.” This period was defined by support from and significant ties to the Church.28 The Quiet Revolution was Quebec’s way to break free from the influence of the Church and from a legacy which by then felt oppressive. It becomes clear, from this long yet necessary review of Quebec history, why state secularism now occupies an important place in the identity of the Quebec people. State secularism played a key historical role in defining this shared identity. Bill 21 can be seen as a further step, like the Quiet Revolution was an important one, in affirming the importance of state secularism. Like the Quiet Revolution, Bill 21 is a constitutive and 24
Ibid at 137-158. Ibid at 223. 26 Ibid. 27 See Donald Cuccioletta & Martin Lubin, “The Quebec Quiet Revolution: A Noisy Evolution” (2003) 36 Quebec Studies 125 at 126-127. 28 Ibid at 127. 25
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symbolic act.29 It helps further define the identity of a people, by affirming the continued importance of state secularism. Form this standpoint, Bill 21 helps complete the unfinished business of breaking free from the oppressive historical influence of the confluence of religion and state. To the extent that we accept this claim, secularism is not necessarily related to the aim of furthering the equality of men and women. Secularism is a goal in itself. The impacts on, as an example, women wearing a hijab remain relevant, but not as much. The bill may negatively affect these women, but not (as in Section I) while purporting to free them. This section has provided a contrasting view of Bill 21. It has presented Bill 21 as a symbolic and constitutive act, and as fundamental to affirming and preserving the identity of the Quebec people.
CONCLUSION This paper has analysed Quebec’s secularism law, Bill 21, from two contrasting perspectives. Through the first perspective, it undertook a purposive analysis of Bill 21. This perspective, omnipresent in the public debate regarding the bill, analyses the bill based on whether it provides effective tools to achieve its main stated aim of furthering the equality of men and women. Through the second, contrasting perspective, this paper undertook an analysis of the social and historical context which gave rise to Bill 21. It painted Bill 21 as fundamentally grounded in a historical context which led Quebecers to afford great importance to state secularism. From this perspective, Bill 21 is a further way for Quebecers to move away from an oppressive legacy where state and religion were intertwined. It is a symbolic and constitutive act. From the omnipresence of the first perspective in the public debate, we can conclude that we are often tempted to adopt a relatively simple view of law as serving to achieve certain objectives. We easily assume that laws are tailored to achieve rational aims in an efficient way. The second perspective reminds us that law (and laws) are far more complex. They are intrinsically linked to their social and historical context, and can serve other purposes. While we will often intuitively feel more comfortable with laws 29
I am inspired here by Macdonald & MacLean, supra note 19 (“[t]he active, constitutive performance of legal interpretation—as education and as law—requires that professors of the Foundations of Canadian Law course deploy a plurality of pedagogical vehicles within the class or seminar room to embody the aspirations of the transsystemic programme” at 755).
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seeking to achieve specific objectives, there is nothing intrinsically less important about the symbolic and constitutive aspects of laws.
BIBLIOGRAPHY LEGISLATION Bill 21, An Act respecting the laicity of the State, 1st Sess, 42nd Leg, Quebec, 2019 (assented to 16 June 2019), SQ 2019, c 12. Bill 60, Charter affirming the values of State secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests, 1st Sess, 40th Leg, Quebec, 2013 (never assented to). SECONDARY MATERIALS: ARTICLES Cuccioletta, Donald & Martin Lubin, “The Quebec Quiet Revolution: A Noisy Evolution” (2003) 36 Quebec Studies 125. Macdonald, Roderick A & Jason MacLean, “No Toilets in Park” (2005) 50 McGill LJ 721. Moore, Sally Falk, “Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study” (1973) 7:4 Law & Soc’y Rev 719. SECONDARY MATERIALS: BOOKS Choquette, Robert, Canada’s Religions (Ottawa: University of Ottawa Press, 2004). Hart, HLA, The Concept of Law, 3rd ed (Oxford: Oxford University Press, 2012). SECONDARY MATERIALS: OTHERS Authier, Philip, “Majority of Canadians Disapprove of Bill 21, but
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WHAT IS THE TRUE PURPOSE OF QUEBEC’S BILL 21? Quebecers Are in Favour: Poll”, The Montreal Gazette (6 August 2019), online: <montrealgazette.com/news/local-news/a-new-poll-showssupport-for-bill-21-is-built-on-anti-islam-sentiment> . Montpetit, Jonathan, “Religious Symbols Ban Pits Quebec Feminists against Each Other”, CBC News (16 May 2019), online: <www.cbc.ca/news/canada/montreal/bill-21-quebec-feminists-onopposite-sides-of-religious-symbols-ban-1.5139422> . Radio-Canada, “Le débat des chefs fédéraux 2019” (11 October 2019), online (video): YouTube <www.youtube.com/watch?v=68hBSrw_qvw> . Selby, Jennifer & Natasha Bakht, “Opinion: Bill 21 Is a Setback for Women's Rights”, The Montreal Gazette (9 April 2019), online: <montrealgazette.com/opinion/opinion-bill-21-is-a-setback-forwomens-rights> .
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