This clause allows provinces to pass laws and exempt them from review for five years. Quebec did that and then renewed the exemption. The Supreme Court of Canada is being asked to say that the province may not do that and overturn the law.
The Bishops Hate It
“The purpose and effect of the [Bill 21] is unilaterally to amend Canada’s federal constitution by imposing an anti- religious, non-neutral ideology, which goes beyond Québec’s jurisdiction”, the Canadian Conference of Catholic Bishops wrote in a court filing.
One appellant in the case is Andréa Lauzon. She is a Catholic teacher who sports a crucifix and miraculous medal of the Virgin Mary on a chain around her neck. She is being told by the state to either remove the necklace or find another job.
The Canadian bishops announced that they were intervening “on behalf of Catholics like Mme Lauzon who are affected by [Bill 21] and in support of [our] ecumenical and interreligious mission on behalf of religious believers of all faiths”.
Quebec, they warned, is “attempting to impose an atheistic posture on religious believers”, which does not square with a Canadian constitution that is “pluralist and pro-religious” and “founded on a political theory that sees fundamental rights and freedoms as God-given”.
There is a popular chant in soccer when fans want to taunt the bad calls of a referee: “You can’t do that.” The Canadian bishops took a similar tack to dismiss what Quebec had done.
“When a province makes itself laïc, it is adopting a non-neutral stance on religion”, the bishops said, and: “The provinces do not have that power.”
Standing for Notwithstanding
One counterargument is, maybe the provinces do have that power.
The Canadian Charter of Rights and Freedoms is a relatively recent document, passed in 1982, and was the product of much compromise. American law and jurisprudence tends to be about using rights as trump cards. The Canadian counterpart is more of a balancing act between the personal and the group, the national and the provincial, the maple syrup and the hockey stick.
The notwithstanding clause, which Quebec now invokes, was an integral part of the compromise that allowed a written constitution to become law in the first place. That is not something that can be easily ignored less than 50 years later.
Colby Cosh is a columnist for the National Post, Canada’s conservative daily broadsheet. In sizing up the challenges to Bill 21, he wrote that Canada’s Supreme Court “is being asked to reinterpret the notwithstanding clause in the Charter of Rights in a way that would amount to a judicial coup d’etat”.
In its own filing, Cosh noticed that the current government of Canada was “encouraging the Supreme Court to ... capture new and previously unimagined powers for itself” and he found that a bit troubling.
“These powers ... would represent a disorderly change to the constitutional bargain, a rewriting of the notwithstanding clause based almost entirely on vibes”, he warned.
The French Case for a Lay State
Another counterargument for Bill 21 can be stated roughly as: “It is a French thing. You would not comprends.”
Éducaloi is a legal education non-profit in Quebec that believes something about the current debate has been lost in translation. “In English, the word ‘secularization’ generally refers to a broad shift away from religion. But in the French-speaking world, there’s a distinction between ‘sécularisation’ and ‘laïcité’”, the organization explains on its website.
The term laicity is about a “lay state” which “emphasizes that the government stays neutral when it comes to religion and that civil law comes before religious rules in the public sphere”, Éducaloi says.
Unlike a thoroughgoing secularism, laicity also at least claims to be based on core values including “equality of all citizens, freedom of conscience, and freedom of religion”.
Knife to a Religious Freedom Fight
Some critics charge that laicity laws tend to be applied in such a way as to discriminate against Muslims.
Wearing a cross necklace is not an obligation for lay Christians, while wearing some head covering in daily life is part of the standard religious practice for many Muslim women. In consequence, a Christian woman could decide that it is okay to not wear a cross, or perhaps still wear one but tuck it in, while on the job. For a Muslim woman, the choice would be much harder.
Éducaloi points out that, while the head covering is a current flashpoint in Quebec, that is not where the debate started. Rather, a Canadian Supreme Court ruling held that it was okay for a Sikh student to wear a kirpan, or ceremonial dagger, to school, as a reasonable accommodation of the student’s religion.
The Quebec government did not like the idea of allowing students to bring daggers to school. The ensuing debate “put laicity on the map”, according to Solange Lefebvre, a professor of religion at the University of Montreal.
Over the border in the United States, one school district took a different tack that did not draw a Supreme Court challenge. Sikh students in Blaine, Washington were allowed to come to school with their daggers, so long as they are as dull as butter knives.
