09/16/2013 06:21 EDT | Updated 11/16/2013 05:12 EST

What You Should Know About Quebec's Proposed Law on Secularism

Lots of ink has been spilled this week about the proposed Quebec secular values law that would prevent a large category of government workers from wearing "conspicuous" religious symbols. Like many others, I think the proposed law is deeply problematic. In reading and thinking about this issue, I've noticed some recurring questions. Below, I've gathered a few of them with my thoughts.

Lots of ink has been spilled this week about the proposed Quebec secular values law that would prevent a large category of government workers from wearing "conspicuous" religious symbols. Like many others, I think the proposed law is deeply problematic. In reading and thinking about this issue, I've noticed some recurring questions. Below, I've gathered a few of them with my thoughts.

There appear to be numerous "Charters" at play here. What are they?

There are two Charters at issue. One is the Quebec Charter of Human Rights and Freedoms. It functions as the pre-eminent statement of Quebec values. It guarantees many things associated with a free society: expression, religious belief, equality; as well some rights that go a bit further, like reputation and, even, a right to assistance from others in life-threatening situations. First enacted in 1975, it stands at the apex of the Quebec legal system.

The Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. Enacted in 1982, it, too, guarantees basic civil liberties, as well as things like minority language rights. As constitutional law, it is "supreme" over the Quebec Charter.

There are many cases where courts have considered both Charters; despite some differences, they are considered largely compatible with each other.

Both the Quebec and Canadian Charters guarantee freedom of religion. And a leading decision makes it clear that freedom of religion means the same thing in each. So, it is significant that the Quebec government is proposing to amend the Quebec Charter to include an explicit commitment to "secularism." This means that, if someone tried to challenge the dress code under the Quebec Charter, it could be harder for them to prevail. Quebec, though, doesn't have the power to change the Canadian Charter, so the latter's guarantee of freedom of religion must prevail over any contrary Quebec law.

Isn't it true that Quebec never actually signed the 1982 Constitution? Does that have any significance here?

Yes and no. Certainly, it has tremendous political significance. Whenever there is a battle between Quebec and the "Rest of Canada" over the former's attempts to safeguard its national identity, we enter high-risk territory. It's been a while since we've endured a real crisis over Quebec sovereignty, but this is the kind of issue that might get it going again. (Or not.)

Legally, though, the fact that Quebec didn't agree back in 1982 has no significance whatsoever. Unanimous provincial consent wasn't required to amend the Constitution (and, for the most part, still isn't). Quebec must abide by the Canadian Charter.

Surely you have to accept some limits on your activities if you work for the government. You can't defend wearing a t-shirt with a swastika under "freedom of expression."

This is true. As a public employee, one's expression rights can be curtailed if they conflict with the particular nature of the job. For example, a teacher who publicly espouses anti-Semitic or other discriminatory beliefs can be disciplined or even fired, if it creates a poisoned environment in the classroom.

No right, including freedom of religion, is absolute. It is subject to reasonable limits that are necessary to further an important state goal. The key is establishing a strong enough connection between the state's goal and the way it goes about trying to achieve it.

The core of the proposed law seems to be that merely being identified as a religious adherent casts doubt on a person's ability to perform her job in a fair, impartial manner. This is a sweeping assertion that would require powerful evidence. None seems to be on offer. It badly conflicts with the very purpose of freedom of religion, namely, that everyone, regardless of belief, has a right to participate fully in society. That conflict is why the Quebec government needs to amend its own Charter, to make it clear that in any battle between religious freedom and a secular public workforce, secularism should win out. But it also means that the law would be very difficult to defend under the Canadian Charter.

Doesn't freedom of religion require the separation of church and state? Is this proposed law an example of that?

Freedom of religion does mean that the state cannot favour one religion over another, or enact a state religion. Although some people dispute whether Canada has a true separation of church and state (pointing, for example, to this or this) it is a basic governing norm for our society.

The problem is that the state is not a monolith. In certain matters, such as when it enacts laws, we want as as pure a separation as possible. But the state is also a large and complex apparatus, brought to life by individuals with their own rights.

It comes down to what "separation", "neutrality", and "secular" means when we are talking about the human beings who are essential to the state's functioning. If we are going to equate the state with the thousands upon thousands of people who work for it, and demand that all of them shed their religious symbols, that will have an enormous exclusionary impact on the public service and other state institutions.

An effect that severe would have to be justified, and it doesn't seem likely that a purely symbolic purpose (since there is no evidence that religious people as a whole are less fit employees) would be sufficiently important. Nor would it be sufficient to point to a desire to prevent negative public "perceptions" of the neutrality of the state as a whole. Perceptions have to be reasonable and consistent with the Canadian Charter. Quebec cannot rely on intolerance of religion or certain religious minorities as a reason to force its employees to shed all indicia of their beliefs.

The proposed law's commitment to a fully secular state is further weakened by the government's insistence that it can retain some very conspicuous religious symbols (like the crucifix hanging in the National Assembly), because they are part of Quebec heritage. This kind of exemption (for a symbol of a majority religion no less) makes the draconian law that much harder to defend as an even-handed application of neutral principles.

The federal government seems to be taking a hard line, talking about challenging the proposed law in court. How would that happen?

The fastest way for the federal government to bring the proposed law before the courts is through a reference to the Supreme Court of Canada. References are special proceedings where questions are put to the courts in the absence of an actual case.

While the federal government can put virtually any question before the Supreme Court, it does not always get an answer. If the Court thinks that the issue is premature, lacks sufficient facts, or is otherwise improper, it can refuse to play along.

The Canadian government could try to challenge the law through an actual case, but that would be more difficult. Because the law affects individuals, and not the government itself, it would first have to convince a court to grant it standing.

Canada could also wait for an affected individual in Quebec to initiate a Charter challenge after the law is passed, and then intervene as an added party. In that case, the challenge would proceed through the Quebec courts before arriving at the Supreme Court of Canada. This would take several years.

If the law is found to be unconstitutional, is that the end of the matter?

Mostly likely, yes, though Quebec could always invoke the Canadian Charter's notwithstanding clause - section 33. In that case, the law would operate "notwithstanding" the Charter. While Quebec has done this before, it would still be an extraordinary move.

If Quebec did invoke the notwithstanding clause (which operates for five years at a time), no other government or court would be able to do anything about it.