Just about everything has by now been said about the merits of the proposed Quebec Charter of Values, including some utterances that would have been better left unsaid. Three main lines of argument divide Quebeckers: whether this legislation is unconstitutional; whether it promotes gender equality; and, finally, whether it is a wise political and moral choice.
This proposed secular charter, which purports to ban the display of ostentatious religious symbols by employees in the public sector, seeks to affirm the neutrality of the state and its secularism. In doing so it infringes freedom of religion, a fundamental right protected under Quebec law, the Canadian Constitution and international human rights law. If enacted, it is likely to be challenged before the courts all the way to the Supreme Court of Canada. Under the court’s existing jurisprudence it would be difficult to sustain the proposed charter’s constitutionality. There is a well-known test to determine whether an infringement of a constitutionally protected right is justifiable. I don’t believe this could possibly meet that test.
The proponents of the charter will argue that there is no infringement of freedom of religion in the first place as religion is fundamentally a private matter, best kept in the private sphere, and that the right doesn’t encompass displays of religious affiliation. This is a very Catholic understanding of religion, which of course cannot be the starting point for defining the contours of religious freedom, particularly in an environment where Catholicism – religious or cultural – is dominant.
We have the good fortune to live under the rule of law. It is tempting to denounce the judicial function as “government by judges” and therefore non-democratic. But the hallmarks of a mature democracy lie in its effective constraints against majority rule where such rule would otherwise trample on fundamental human rights.
It’s also easy to ridicule the intricacies of legal reasoning that produce results that we don’t always like. But in the end, it’s all quite simple. To have rights is like having an umbrella; it’s only useful when it’s raining. Freedom of religion will mean nothing if it is completely relegated to the private sphere. It’s the same for all fundamental rights. It is hard to give full effect to them when doing so runs contrary to a large social consensus. And the more their implementation disturbs, the harder it is to respect these rights. Yet to live peacefully in a democracy we need to develop a form of political empathy that enables us to see the world from the point of view of others. This is so when it comes to freedom of religion, which is also part of the broader prohibition against discrimination of all sorts, including gender discrimination.
This is where feminists are divided, and understandably so. Pursuing the same objectives, we differ on the acceptable means to advance the true equality of women. It is clear that Bill 60 targets, or in any event will affect, principally Muslim women who wear a head scarf. For many of us who grew up in Quebec, religion, or I should say religions, relegate women to a status of inferiority and submission; and in light of our own history we are suspicious of religious women who believe they accept that status of their own free will. And we are understandably unwilling to let our hard fought gains erode.
But some, including me, also believe that we should not coerce those we wish to liberate. And it is particularly offensive to advance our fight on the backs of those women who are now among the most marginalized and whose access to the workplace is the best guarantee of both their autonomy and their integration.
In short, we are called upon to choose the kind of world in which we want to live. All this talk about secularism, the neutrality of the state, tolerance or the specificity of Quebec should not obscure the fact that this is not about affirming values, but it’s about promoting and implementing them.
We have avoided the pathologies of nationalisms that feed the far right and all other forms of extremism. Quebec society is modern, open to the world and until now inclusive. In that setting, the proposed charter of secularism is a siren song. It evokes images of a homogeneous Catho-secular society where “our” religious symbols are innocuous, since we have voided them of their purely religious content, but where the religious symbols of “others” are a perpetual menace to us all.
In reality Quebec has succeeded remarkably well in absorbing immigration into a tightly knit society. Fear is always a bad adviser. Rather, social cohesion comes from a generous and welcoming spirit that induces others to integrate. This is, in fact, what newcomers have always done.
Louise Arbour is a former justice of the Supreme Court of Canada and a former UN High Commissioner for Human Rights.
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