What Really Matters

Whether Québec’s anti-religious bill is racist or Islamophobic is beside the point. What matters is its illiberalism

In the debate about Bill 21, Québec’s proposed legislation to make “laicity”, whatever exactly that is, the province’s official religious doctrine, and to impose a correspondingly faith-based dress code on its teachers, lawyers, and police officers, much attention is being devoted to the question of whether the endeavour reflects racism, Islamophobia, or other forms of discrimination. The proposal’s critics often say that it does. Its defenders, and indeed some critics, profess offence at the suggestion, and insist that the aggressive form of secularism the Québec seeks to enforce is a principled political vision. It seems to me that this all quite beside the point. Whether or not Bill 21 is the product of discrimination or of high principle does not matter. It is equally despicable either way.

Now, I should say that I personally have little doubt that xenophobia makes a more-than-deminimis contribution to such political support as there is for Bill 21. Without an irrational fear of “invaders”, of foreigners (actual or presumed) who “impose their customs” on the established populations (which outnumber them by 30- or 50- if not 100-to-1), the ambitions of dogmatic secularists to impose their creed on Québec would in all likelihood have remained perfectly theoretical. This is, after all, what they had been for decades, before this fear started being inflated in the wake of the Supreme Court’s ruling in Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 SCR 256, a.k.a. the kirpan case. For all that we are asked to remember Québec’s uniquely fraught relationship with (Catholic) religion, there was nothing like the current degree of support for virulent secularism at a time when the memories of this relationship were fresher than they are now. Still, whatever may be the case in general, we should probably be reluctant to make accusations of xenophobia against individuals ― unless, of course, we have specific reasons to do so in their particular case.

Let us focus, then, on the supposed principled justifications for Bill 21. Let us presume, for the sake of argument, that its supporters really believe that, as Christian Rioux put it in Le Devoir, “the diversity of modern societies makes state secularism an increasingly unavoidable requirement. The pluralist societies are, more citizens demand that the state’s religious neutrality be beyond reproach” (translation mine here and below). Let us ignore the delightful irony of a man named Christian preaching secularism. Let us even avert our eyes from the sleight-of-hand involved in the equation of “state neutrality”, which as the Supreme Court explained in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3, “is required of institutions and the state, not individuals”, [74] with the “neutrality” of men and women who work for the state. Let us concede, or imagine, that the supporters of Bill 21 believe in good faith that their vision of secularism is morally justified.

Why are they wrong? Simply because this form of secularism involves gross violations of individual liberty. It means that the state gets to tell people how, or how not, to practise their faith ― whether they will be allowed to pursue their fundamental commitments. Mr. Rioux denies that Bill 21 does any such thing, since it only affects “the right to publicize [one’s religion] during working hours” ― as if one could have a part-time faith. This is laughable. If Mr. Rioux were asked to wear a kippah, but only during working hours, would that be all right by him? (This is why the frequent attempts to analogize the policy of Bill 21 to bans on political self-identification do not work: political commitments are indeed part-time things, even for hardened partisans, and can be set aside and then resumed, in a way that religious commitments cannot.)

Needless to say, the state may limit or even take away a person’s liberty to avoid it being used to interfere the life, liberty, or property of others; and, perhaps, to avoid it being used to deny others’ equal membership in the community. But public officials or employees who refuse to convert to part-time religion or to commit apostasy do no such thing. They do not take anyone’s property; they do not deprive anyone of their ability to do anything; they do not impose their beliefs on anyone. Sure, they are visibly, manifestly, identifiable as having a religious affiliations; but most of us are visibly, manifestly identifiable as members of particular genders and racial groups, not to mention as being of a certain age. A Muslim teacher wearing a hijab no more makes her students Muslim than a white male teacher makes his students white men. (Of course it is possible that a religious teacher or public servant will engage in proselytism, or unduly favour co-religionists. These things should be punished, just as propaganda or favouritism based on other commitments or aspects of one’s identity should be punished.)

The secularist obsessives supporting Bill 21, however, have a much more expansive view of the reasons for which the state can deny people’s liberty. Mr. Rioux writes that, “faced with a multiculturalism that seeks to impose its single-minded thinking everywhere, the premier [of Québec] was right to assert … that ‘this is how we live here'”, because “Quebeckers have much more than a language in common”. Never mind, again, the irony of denouncing single-minded thinking while insisting that a state may deprive citizens of liberty in the name of “how we live here” and of what they purportedly “have in common”. Were Mr. Rioux not a hypocrite, the idea that state-sanctioned ways of doing things ― said to be widely or even universally shared despite, and indeed precisely because of, glaring evidence of the fact that they are not ― can be imposed by force on those who do not share them would be no less wrong-headed, and no less pernicious. This idea purports to authorize those in power to dictate their beliefs and their ways of living to everyone, for no other reason than that they are in power. It is incompatible with any liberty that deserves the name.

Of course this illiberal view is widely held. It is not confined to any particular racial or religious group, or any nationality. Mr. Rioux appeals, against the charge of Islamophobia, to the fact that a large majority of French Muslims apparently support restrictions similar to those that would be imposed by Bill 21. They can’t be Islamophobes, can they? This sounds like a good argument, so far as it goes, except that it doesn’t go anywhere that matters. A French Muslim can be as illiberal as a French Canadian lapsed Catholic. For that matter, the judicial darlings of Canada’s bien-pensant multiculturalist intelligentsia have proven themselves quite capable of this sort of illiberalism when then invoked mythical “shared values” to authorize an arm of the state to deny an accreditation to a religious dissenting institution, in Law Society of British Columbia v Trinity Western University, 2018 SCC 32.

It might be odd to say so now, but the debate around Bill 21 shows as well as any other that equality, and its attendant -phobias and -isms, occupy too large a space is our thought and discourse. This is not to say that these things do not matter. But not everything that is wrong in our politics is wrong because it contravenes the value of equality. Nor is anything that does not contravene this value therefore permitted, or anything that supports this value therefore required. It is time we remembered that liberty is no less important ― or, better yet, that we realized that liberty is more important, but I am not asking for everything at once. It is time we remembered that living individuals, not intellectual dreamt-up abstractions or imagined communities, are what really matters. It is time we stopped fearing the way in which others might use their liberty if we do not preemptively coerce them. It is time we were free.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

6 thoughts on “What Really Matters”

  1. I worked in the Middle East for 7 years and according to university rules if the women had their faces covered they had to show me their face and ID if writing exams. It was always done privately in a booth or private room. It is for certain that men will wear the Abayas if they need to. I believe it to be important for us to have access to the face and ID.

    1. I really don’t think that’s an issue for anyone. No one, so far as I know, objects to showing the face for ID purposes, and there was no need to enact legislation, let alone such sweeping legislation, to ensure that this happens.

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