La version française de cette conversation est disponible ici.

Andrew Bennett: We've just marked the one year anniversary of the passage of Bill 21. Professor Leckey, what were you thinking a year ago, and what has transpired since?

Robert Leckey: A year ago, people were still in shock at how thin the consultations were and how few religious groups were invited to Quebec City. There were brief hearings in May, and in June there were last minute amendments. Things were brought in not quite at the 11th hour, but only hours before it was finally adopted by the government. It was rammed through so people could go on their summer holidays. The language was, “We’ve got to put this secularism issue to bed so we can move on with the barbecue season in our constituencies.” A year later, it hasn't gone away. It hasn't ended the debate, which we could have predicted. It's had very concrete, very painful consequences in people's lives. And there's been a creep where the four corners of the statute don't limit the impact of it. It sends a broader message that the province is suspicious of religious minorities that are visible.

Andrew Bennett: Do you think the secular law serves as a manifesto for Quebec society and its view on religion and religious freedom since the Quiet Revolution?

Robert Leckey: Quebec is a complicated place and there are multiple views about religion. I don't think you can trace a straight line from the Quiet Revolution to this law. There was clearly a movement in the 1960s to set up a provincial ministry of education, to make sure  the health ministry was running health and that there were not just religiously run hospitals. But there were not also attempts to make Christianity and other religions invisible. 

The conception of secularism has changed. The idea that religion is to be strictly private is not one that has very deep roots in the province. In some ways, the Catholic majority remains still visibly religious. Whether they're observant by being at Mass on Sunday is a different story. But if the Pope dies, it's a huge event. When a big hockey player dies, the State funeral is in a Basilica in downtown Montreal. It's very religious and everybody's there. With Bill 21, the beauty of it as a political strategy was that it brought together such distinct views. It brought together people who are genuinely hardline secularist with others who might be uncomfortable about the place of immigration in society, or nervous about Muslims. They all come under a sort of federating umbrella of support for Bill 21.

AB: How much do you think that might be a response from people who are culturally Catholic looking at these other communities that are more deeply religious? If we speak about Hasidic Jews, if we talk about Muslims or others who were more visibly religious in the province, is there maybe a sense among the predominantly francophone, formerly Catholic population that “we've moved on, we have more of a cultural space now for our faith?” Is that a fair assessment of some people's thinking: They don't know how to engage with these other religious communities?

RL:  Some people now associate with other minority religions a time when the Church and government were closely intertwined in governing the province, and imposing a particular religiously inspired vision of morality. So, a school teacher might be wearing a hijab. Some people look at that and imagine it is somehow imposed on (her) the way Catholic norms might have been imposed on the entire province in the past.

It's obviously a different situation for a diasporic Muslim to be wearing a religious symbol here in Quebec. It is not the sign that any kind of institutional religion is controlling them. Part of the challenge is finding space in the narrative and the discussions for the liberation story that many Quebecers have experienced without reproducing it, or mapping it on a very different trajectory of other groups? 

Andrew Bennett: What is the common good this law is trying to promote and how does that dovetail with respect to fundamental freedoms? What is the broader cultural goal in taking this approach towards fundamental freedoms?

RL: It's not separable from the legal arguments and the justifications put forward, but the idea is that the society is one in which people need to be free to make their own choices in private rather than to have people somehow imposing their views on others. Where the conversations go wrong very quickly is the whole question of whether my wearing a religious symbol is, per se, me proselytizing you. Is the very fact of wearing a hijab somehow imposing it on others? We've moved to a dominant discussion that takes the mere visibility of wearing a symbol as necessarily impinging on other people. The imagined public good is a space in which nobody's being proselytized by anybody else's religious symbols. And there's a sense in some quarters that children in schools, for example, are themselves so vulnerable to such conversion efforts that simply seeing a school teacher wearing a religious symbol is the teacher’s effort to convert them.

There was a big incident last fall during part of the litigation when the Chief Justice said to a   government lawyer: “You're asking me to balance some people's fundamental right to work with other people's visual allergy to religious symbols.” It struck a number of people as a perfectly reasonable question. Others were horrified by it. They thought it was biased. They thought it was a complete misunderstanding of the seriousness underlying Bill 21. But it does seem to rely on the idea that simply seeing someone else's religious observance necessarily affects the observer.

AB: It seems to speak also to the division that Charles Taylor has emphasized between a closed secularism and an open secularism. Open secular space is where the State is genuinely agnostic about the place of religion in society, and allows for a free market of religious expression within the bounds of the law. Closed secularism is where the State imposes a particular understanding of the secular space, which is not neutral. It makes certain claims. To many people, the argument that people who wear religious symbols are somehow proselytizing is rather rich. 

RL: The law itself states early in its text that it respects freedom of religion. It respects people's equality and freedom from discrimination. All that is laid out in the law as if it's somehow compatible with the content of the law. It's a very particular conception of neutrality because some people are able to observe their religion to the full extent of what they sense their tradition is calling them to do while respecting the law. Other people run up against it immediately because they feel impelled to wear a religious symbol and to manifest their belief in a particular way. And so obviously the law has deeply differential impact from one faith to another.

AB: From a constitutional law perspective, how tenable do you think the government’s position is in the medium to long term as more cases come forward?

RL: There are very sound constitutional arguments that will be aired in court eventually. The government used the notwithstanding clause in the Canadian Charter, and the analogous clause in the Quebec Charter of Human Rights and Freedoms, to shield the law from certain obvious attacks. But I think there are fundamental arguments that will have a very good shot once they get in front of a judge. The Canadian Charter and the notwithstanding clause don't exhaust the fundamental principles of the Canadian constitution so I think the government will have a rough time with it. Its aspiration was that by ramming the thing through before the summer recess a year ago, it would somehow close the chapter. I think they'll find that's not the case at all. 

Last year was too soon to know whether the law would actually cause harm in people's lives (but) litigants are certainly collecting evidence of it. It's very plain it has denied people employment. It is having an impact, and not just on Muslims.  Plaintiffs named in one of the lawsuits are Catholics who were prevented by the law from showing their faith in the way they would like to do so. 

AB: The secularism law came up repeatedly in the federal election campaign last year. Premier Legault and the minister who introduced and guided Bill 21 through the National Assembly both said the rest of Canada and the federal government had nothing to say on this issue. Is this a valid position for the Quebec government to take? Does the rest of Canada have a voice? Should federal political leaders   take action in the courts?

RL: I think it's a very tricky argument for Quebec to say there is no voice outside the level of the provincial government on this issue. I mean, there are fundamental questions about the Canadian constitution involved, the relationship between the Charter and other parts of the constitution, other parts of the constitutional framework. Quebec certainly intervenes in litigation elsewhere in the country where it thinks it has a stake in the constitutional decision. Quebec intervened in carbon tax litigation outside the province because it cared how the courts interpreted the constitution.To say the federal government or other provinces have no stake in the construal of the Canadian Charter or the notwithstanding clause doesn't make any sense and it's inconsistent with how Quebec itself acts. 

There's always sensitivity when political judgements made in Quebec are criticized from outside, but on the constitutional matters in terms of having valid standing to get involved in litigation, the path is clear. Other actors affected by the constitution have a stake. It’s important to remember that not only are the people impacted by this law Quebec residents, they're Canadian citizens. They have certain rights. 

AB: Clearly, the debate is not ended.

Tomorrow in Convivium: Debating the pros and cons of Bill 21.