Abigail Sefzik

Introduction

Politics and religion are two of the most critical aspects of our lives, and yet we feel the inherent need to purge both topics from dinner table conversations and our everyday social interactions. There has been an inflated feeling of continual polarization founded on the role of church and state in Canada. History proves time and time again that veering too far to either side undermines principles of a liberal democracy and religious freedom, constructing deep-set and lasting consequences. While challenging to have, discussion regarding this particular topic is crucial to embracing diversity and individual liberties, and various perspectives.

I want to examine the social implications and legal ramifications of Quebec’s Bill 21: An Act Respecting the Laicity of the State.1 We will discuss the historical influences of pluralism within Canadian society, the current challenges of Bill-21, and insights into several judicial protections of religious freedom. 

Executive Summary 

Trial and error have given birth to a myriad of political theories and religious ideologies regarding the role of the Church and State all across the globe. Much contemplation and investigation have caused me to wrestle with religion’s role within society. Part of my reasoning behind writing this was based on a deep curiosity regarding the purpose and function of religion within a liberal democratic government. 

Prior to living in Canada, I grew up in the Southern United States where God and government ruled side by side, intercommunicating on a throne of equality. While the American Constitution lays out explicit (with a plethora of caveats) protections of religious freedoms, the US also does not shy away from using religiously charged statements in the public sphere, such as “In God we trust” 2 or “One nation under God”.3 While Canada may not have the same First Amendment rights I had grown accustomed to, its Charter of Rights and Freedoms lays the foundation for religious freedoms within Canada. There is value to be found in both countries’ approaches, and I believe discovering a middle ground between them would most effectively protect religious freedoms.

 John Locke, deemed the “Father of Liberalism”, laid the foundation for pluralism in the late 1600s with his social contract theory presented in his piece: Two Treatises of Government. Prominent modern ideologies can be traced back to Locke’s philosophy, namely, that individuals must sacrifice certain rights for the sake of the social good.4 The tension of individual rights within the broader context of cultural cooperation has dominated the political and social discourse of the 20th century. The World Wars significantly shaped the narrative of pluralism within Western democracies. At the same time, National socialism and global communism have left deep, lasting scars in the flesh of countries across the globe. 5 

Western democracies largely operate within the context of pluralism, assuming an attitude of tolerance, and enforcing the ideology of coexistence. Pluralism directly influences the way Canadians are expected to operate in the realms of both their civic duties and religious freedoms. This mindset extends into the realm of culture, religion, and lifestyle choices; it is reflected in our laws and how we are expected to interact with others as civil members of a democratic society.    

Pluralism is also embraced within the spheres of government through the separation of church and state. Through this particular lens, the role of government is to govern its citizens by maintaining order in the public arena, while the role of religion is to promote private spiritual practices to enhance human flourishing.  

Initially, the notion of church and state functioning as separate entities was merely “assumed” in the public square; the understanding that Canada operated within the context of a secular state seemed obvious. As David Koussens writes in Nationalistic Secularism and the Critique of Canadian Multiculturalism in Quebec, “Canada nor any of its provinces had ever enacted a law explicitly separating church from state, nor had they formally proclaimed secularism in a constitutional text.” 6

It wasn’t until the mid-’90s that conversations encompassing pluralism were brought into public dialogue in Canada. The initial cause of this debate was originally sparked by a student who was expelled from his public school for wearing a hijab to his class. This case resulted in a report produced by the Commission des droits de la personne et des droits de la jeunesse du Québec that urged for legal safeguards regarding the allowance for individuals to wear religious symbols in public spaces. Not long after, the Supreme Court ruled in favor of a Sikh Royal Canadian Mounted Police officer in 1995, affirming he could wear a turban in his place of work.  

Perhaps the most significant legal decision continuing the conversation of pluralism is Big M Drug Mart, where the Supreme Court emphasized the importance of “individual conscience and individual judgment” within the context of Canadian society, saying this lies at “the heart of our democratic political tradition.”

Despite legal precedence, Quebec passed Bill 21 in 2019 with the intended purpose of “affirm[ing] the laicity of the State” by further separating the functions of church and state, ensuring religious neutrality by prohibiting individuals from “wearing religious symbols in the exercise of their functions”, effectively undoing much of the work done to protect religious freedoms. 

Worldview is the driving force behind culture, politics, and religion; it’s an inescapable reality. The Golden Rule is a broadly accepted ethical standard for how individuals should interact communally, stating to “treat others the way you would like to be treated”. This principle manifests itself not only in personal undertakings- but also in how we practice public policy. It is this rule that lays the foundation for tolerance and pluralism; citizens of democratic countries tolerate differences and disagreement so that the same tolerance is extended to them. 

As previously established, the majority of Westernized liberal democracies primarily function on principles of pluralism and reasonable tolerance. It is important to note that the basis of religious and cultural pluralism is not about truth and falsehood but rather about perceived truths and falsehoods. Pluralism establishes a sense of ideological immunity operating on the understanding that religious belief is a private matter. In a pluralist society, we do not ask whether or not the religion that the individual holds is true; instead, the hallmark of religion is rooted in the sincerity of the individual’s belief. Thus, it safeguards the individual’s right to a worldview and the practice of spirituality.

While pluralism lays an ideological foundation for a separation between the church and state, in practical terms, one must acknowledge that religion dramatically impacts an individual’s relationships with persons, work, and government. Although, admittedly, private religion is technically separate from the public sphere, however, it still dictates the various aspects of how individuals interact within the public sphere. 

One must also acknowledge the lasting impacts of religion within society- both positive and negative. Each functioning society operates with a basic sense of shared values and expectations. The worldview of Canada has long been established as a secular country subject to the Crown, while there is no official state religion. While there are notable exceptions, most Westernized governments operate through the lens of both Judeo-Christian values and reasoned morals produced by the Enlightenment. 

Totalitarian authoritative regimes such as the North Korean government or Communist Russia act as aggressive examples of what happens when there is no separation between the church and the state- a haunting historical track record reveals that the government becomes God. And as a result, it becomes an all-powerful, all-knowing, sinless authority worthy of respect and worship. The government by default, defines moral right and wrong.

There are various approaches to how church and state should be divided. None of which includes banning or punishing individuals for practicing their inalienable right to hold a set of belief systems. Canadian Think Tank Cardus produced a research report, Protecting Freedom of Conscience, focusing on protecting conscience rights within our society. They not only communicate the extensive social necessity of tolerance but also caution against statutory interference, “State action that compels a citizen to do something that violates her conscience or face some sort of adverse consequence is a severe breach of freedom of conscience.”

This can be contrasted with US policies which blatantly allow for religion to be brought up in official contexts. There is a case to be made that enabling religious statements to infiltrate legal documents, tender, and laws undermine religious freedom by allowing the government to push a religious ideology onto its constituents. 

Bill 21 has sparked robust controversy, especially among cultural and religious minority groups such as Muslims, who comprise 3.2% of the total Canadian population, followed by Sikhs, who account for 1.4% of the census. On May 6th of 2021, the National Council of Canadian Muslims (NCCM) and the Canadian Civil Liberties Association (CCLA) announced their intention to challenge Bill 21 on the grounds of religious freedom. 

The majority of these challenges were posed in light of pre-existing documents such as Quebec’s Charter of Human Rights and Freedoms along with the Canadian Charter of Rights and Freedoms, which provide a holistic understanding of human rights, especially in the context of religious freedom and pluralism within Canada. 

As it stands today, Bill 21 not only holds legal authority within the province of Quebec but also sets a dangerous precedent across the country in matters of freedom of conscience. Sonia Smith writes that “A Canadian court has largely upheld a controversial Quebec law barring civil servants in positions of “authority” from wearing religious symbols at work.” While Quebec’s attempt to separate church and state is likely well-intentioned, banning religion from the public sphere has resulted in a myriad of unintended consequences that ultimately target certain religious minorities rather than protect them.

Before examining the specific issues presented within Bill 21 it is crucial to establish the difference between legislation that explicitly prohibits individuals from publically expressing their faith and laws that merely limit certain religious activities. The latter instance is quite tricky to navigate because legislation can by consequence, indirectly impact individual sovereignty. The Oakes Test has traditionally employed four elements to determine whether or not there can be limits on religious freedom from the courts: substantial objective, rational connection, minimal impairment, and final balancing.

Those standards are nuanced and can be justified personally. However, Quebec’s Bill 21 explicitly prohibits religion from the public square- not simply limiting it. As a consequence, the government, by default, acts as a moral and ethical judge, jury, and executioner for what ideas are allowed. Secularism is a worldview. One might even argue that it constitutes a religion itself. This premise makes Bill 21 dangerous because it doesn’t promote tolerance but rather forces secularism into the government. 

Lawmakers should avoid enacting policies that dictate how individuals and businesses are permitted to interact with ideologies they ethically disagree with–right or wrong. Our role in a democratic society should be to keep governing authorities accountable on two accounts: protection and prohibiting. The legal protection of individual charter rights and blocking laws that prohibit the freedom to exercise those rights. It is a dangerous precedent for legislation to determine individual morality.

As we previously discussed, the underlying philosophy backing pluralism operates on the notion that we do not ask whether or not the religion that the individual holds is true but rather the degree of their sincerity about their belief. By banning religion from the public square, Quebecs’ bill 21 takes an objective stance on truth. In order to preserve the rights of the individual, Canada needs to delineate between the individual’s personal actions and those they carry out on behalf of a role they hold in the public square. For example, there is a world of difference between a public school teacher wearing a hijab to work versus forcing students to pray to a deity in a public classroom. The former is a personal action, while the latter uses a public role for religious ends, at the expense of the student’s religious beliefs. 

It’s paramount that provincial legislatures and Parliament fulfill their duties to protect their citizens by protecting religious rights without prohibiting religious freedom from the public square.

Legal safeguards have long been established by the legislative as a cornerstone for protecting pluralism within a liberal democracy. As previously established, the courts have recognized the importance of individual, societal, and legal tolerance. Big M Drug Mart set the legislative precedent through the “emphasis on individual conscience and individual judgment.” 

That being said, the separation of church and state is paramount for the protection of individual liberty and conscience thought. However, as noted, separation is intended to create safeguards rather than punishment for displaying religion. As previously stated, the courts have already established citizens’ capacity to “make free and informed decisions” in Big M Drug Mart. Legislatures must uphold what the courts have traditionally decided by protecting an individual’s freedom of religion. 

Conclusion

In conclusion, in the private sphere, we must individually uphold the principles of the Golden Rule. Especially for those who challenge our own sincerely held beliefs in matters of religious freedom, we must actively advocate for our neighbors—occurring both personally and through policy, regardless of whether or not we agree with a particular set of ideologies. From there, we must begin with ourselves and practice the golden rule in our personal lives regarding how we treat those with whom we disagree- that is the starting point to producing a policy that accurately reflects Canada’s cultural, religious, and political diversity.

¹Bill n° 21: An Act respecting the laicity of the State – National Assembly of Québec”. http://www.assnat.qc.ca. Retrieved 2021.
² “U.S. Department of the Treasury.” History of ‘In God We Trust’, November 17, 2021. https://www.treasury.gov/about/education/pages/in-god-we-trust.aspx.
³ “The Pledge of Allegiance – Va.gov Home | Veterans Affairs.” Accessed November 18, 2021. https://www.va.gov/opa/publications/celebrate/pledge.pdf. 
⁴Ashcraft, Richard. Locke’s two treatises of government. Routledge, 2013.
⁵Kattago, Siobhan. “Agreeing to disagree on the legacies of recent history: memory, pluralism and Europe after 1989.” European journal of social theory 12, no. 3 (2009): 375-395.
⁶Koussens, David. “Nationalistic Secularism and the Critique of Canadian Multiculturalism in Quebec.” In Citizenship and Belonging in France and North America, pp. 17-32. Palgrave Macmillan, Cham, 2020.