By Irwin Cotler and Michael Milech
As expected, the provincial government's proposed Charter of Quebec Values contains a highly problematic ban on religious symbols or attire for all public sector employees. The Charter's supporters argue that it is necessary to protect the religious neutrality of the Quebec state, but that argument is based on a number of faulty premises:
1) Myth: The state cannot be religiously neutral if public employees wear religious items.
The state is neutral if its rules apply equally to everyone, and are enforced without favouring one group over another. If, for example, Hindus had to undergo a more strenuous driving exam, or Jehovah's Witnesses had to pay higher taxes, that would be a lack of state neutrality. But an accessory worn by an employee does not in itself compromise the neutrality of an institution. As long as judges with kippas enforce the Civil Code and not the Torah, and as long as teachers in hijabs follow the provincial curriculum and not the Koran, state neutrality remains intact.
2) Myth: Religious identity can be "turned off" during business hours.
For many people of faith, wearing a religious symbol or garment is neither optional nor an attempt to proselytize. Rather, it is a fundamental aspect of their being and of their personal relationship with the divine. To require, for instance, that an observant Jewish man remove his kippa from nine to five is to ask that he default on a religious obligation and mute his identity for eight hours daily. Moreover, if the faith of a public employee is causing partiality in his or her duties, it is unlikely that a change of clothes will solve the problem.
3) Myth: Religious symbols in the workplace undermine gender equality.
This myth appears founded in the misperception that Muslim women who wear headscarves are necessarily oppressed. In fact, many liberated, independent, even feminist Muslim women choose to wear them, and we will never make women more free by limiting their freedom of choice. Gender equality in Quebec is truly imperiled by unequal pay for men and women, by violence against women, by glass ceilings that persist in certain occupations and institutions, and by a proposed Charter that would effectively bar observant Muslim women from public employment, limiting their ability to practice their professions and increasing their economic dependence on men.
4) Myth: Certain Catholic symbols in public institutions are cultural or historical, but faith-based accessories worn by public employees are religious.
In fact, they are all cultural, and they are all religious. Naturally, the crucifix on the wall of the National Assembly is a religious object, but Catholicism is also a central part of Quebec's history. Similarly, turbans are religious headwear, but they also have cultural and historical significance for many Sikhs. When PQ Minister Bernard Drainville explained that Christmas decorations will be permitted on public grounds because Christmas is "part of our culture," the clear implication was that turbans, hijabs, and kippas are part of someone else's. However, religious minorities are part of Quebec society, and their symbols are necessarily part of Quebec culture as well.
5) Myth: If a majority of Quebecers want these measures, then they are legitimate.
Minority rights are not subject to majority rule. In constitutional democracies such as ours, the constitution sets out fundamental freedoms - like freedom of expression or religion - in order to protect minority rights from what Alexis de Tocqueville called "the tyranny of the majority." At his press conference, when Minister Drainville was asked directly whether this Charter constitutes such a Tocquevillian tyranny, he replied with a mere "No, I don't think so," and moved on to the next question. Yet this is a critical problem with the Charter, and it merits a fulsome response.
6) Myth: These measures are not directed at minorities, because they apply to all Quebecers equally.
First, since most Quebecers are not devout adherents to any faith, the ban on religious accessories would by definition apply to members of minority groups. Moreover, it cannot be denied that those affected will be overwhelmingly non-Christians, and it is unlikely that this Charter would ever have been devised if "ostentatious" crucifixes were the only religious symbols at issue.
7) Myth: Quebec is divided and threatened by a "crisis" of religious accommodation.
This myth was dispelled five years ago by the Bouchard-Taylor Commission, which spent 31 days and $3.7 million travelling the province, examined some 900 briefs and 13 academic studies, and ultimately concluded that the matter was largely a "crisis of perception" created by rare instances blown out of proportion. By contrast, the PQ has been unable to cite a single study or statistic supporting the claim that state neutrality and the equality of men and women are under threat. In diverse societies, occasional tensions and complications are not crises, they are normal, and they are preferable by far to the tensions and complications that develop in societies that seek to impose uniformity at liberty's expense.
Ultimately, rights are not absolute, and the state may limit certain freedoms if such limits are reasonable and demonstrably justified. However, with respect to the Charter of Quebec Values, the case for the need to restrict freedoms is demonstrably weak.
This Charter may never become law, and if it does, it will almost certainly be challenged before the courts. Yet, it could take years to get to that point, and it will be regrettable indeed if Quebecers spend all that time and energy debating such divisive measures with such flimsy justification.
Irwin Cotler is the Member of Parliament for Mount Royal, former federal Justice Minister and Attorney General, and Emeritus Professor of Law at McGill University. Michael Milech is a writer from Montreal.