The Fantasy of State Neutrality

This is a translation of my op-ed that that was published yesterday on the website of La Presse.

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The Parti Québécois proposes, if it wins the elections, to enact a « Charte de la laïcité » (Charter of secularism) for Québec. This charter would, among other things, prohibit civil servants from  wearing “ostentatious religious symbols.” This prohibition would, to be sure, be motivated by a noble principle, the neutrality of the state. But it is not the right means to realise this principle, and is discriminatory.

Let us grant, first, that the state has a duty of neutrality; that is, it may not grant privileges or favours to a group of its citizens that it does grant to others.

Let us grant, too, that this duty of neutrality applies not only to the contents of legislation but also to its administration. This means that civil servants and other state agents, entrusted with the application of laws, must act impartially, without favouring one citizen over another, including on the basis of his or her belonging to any group, whether religious, ethnic, or other.

Let us grant, finally, that the administration of the law must not only be neutral but also appear to be neutral. It is not enough for a civil servant’s decision to actually be neutral. It is also necessary that a citizen, at least a well-informed and objective citizen, have no reason to doubt the decision’s neutrality.

The prohibition of ostentatious religious symbols would aim at ensuring the appearance of civil servants’ neutrality. At work, at the moment of applying the law, civil servants represent the state rather than the religious groups to which they belong in private life. If they are allowed to identify with members of particular religious groups, do they not risk favouring their co-religionists? Do they not, above all, risk provoking, among the citizens they serve, a reasonable apprehension of bias?

No. The worry that, for example, a civil servant wearing the headscarf will fail to discharge her duty of neutrality is neither objective nor reasonable. The idea that the physical appearance of civil servants must be neutralized in order that they may exercise their functions impartially belongs to the realm of fantasy or hypocrisy. A person’s physical appearance usually reveals his or her belonging to all manner of groups: to a gender, to a race, to a certain age group. We would not think of imposing the burqa as the uniform for civil servants (male as well as female of course) in order to avoid letting citizens know whether they are served by a man or a woman, a White or a Black, a youth or an old person.

We know that the civil servant, the police officer, the judge whom we face belongs to one or many such groups. Yet we ought, as citizens, expect them to act in good faith and with neutrality.

Religious belonging is not different from other forms. It is, sometimes, easily identifiable. But it is no more reasonable to doubt the impartiality of a civil servant who wears a headscarf for the sole reason that she is Muslim than it would be to doubt her impartiality because she is a woman. Prohibiting civil servants from wearing religious symbols is irrational.

It is also discriminatory. Not only does it discriminate between religions, since some religions – including that of the majority of Quebeckers – do not require believers to wear religious symbols of the sort that is now sought to be banned. It also discriminates between members of the same religious group, in the case of religions, such as Islam and Judaism, which impose the wearing of ostentatious religious symbols on one gender but not the other. Thus a prohibition proposed out of a concern for neutrality and equality between men and women would prevent Muslim women, but not Muslim men, from serving the Québec state.

The ban on ostentatious religious symbols in the civil service would be irrational and unjust. It would be a simplistic measure, favouring appearances at the detriment of a real equality and a true concern for living together.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading. View all posts by Leonid Sirota