In one of his first announcements, recently elected François Legault has declared that he will invoke the notwithstanding clause to immunize a ban on people in positions of authority wearing religious symbols while acting in the course of their employment. The ban will apply to public servants such as teachers, police and judges. The goal is to make it clear that Quebec is a secular society, part of a francophone society that will also be promoted or protected by requiring immigrants to learn French or be exiled from the province (exactly how the latter is to be accomplished remains to be determined).

Removing religious symbols from public sector workplaces  has been the subject of ongoing debate in Quebec. In 2010, Jean Charest’s Liberal government introduced Bill 94 that would ban the provision or receipt of public services by someone wearing a “face covering”; although not using the term, the bill applied to women wearing a niqab, a full face covering. Bill 94 did not pass. In 2013, the PQ government introduced a Charter of Values that would do this, but leave the crucifix hanging in the Quebec legislature (since it is a reflection of Quebec history and culture). Again in 2015, the Liberals introduced Bill 62 to ban the provision and receipt of public service while wearing a face covering (with provision for religious accommodation). The real impact of the bill would be on Muslim women wearing a niqab or burka, since other religious clothing or symbols do not cover the face. Bill 62 passed in 2017. It was said to cover all public services, including, for example, a woman wearing a niqab or burka getting on a bus. The Quebec Superior Court stayed the application of the legislation until the government released accommodation guidelines in May 2018.

Now Legault and his Coalition Avenir Québec plans to ban anyone providing public services from wearing any religious symbol on the basis that someone performing “coercive functions” should not be associated with religion. (He will, however, leave the crucifix in the national assembly, probably the most significant state arena.)

Legault’s stated intention is not to require refusal of services to people wearing religious symbols, but to make the public sector workplace religiously neutral. This approach claims to reflect the position of the Bourchard-Taylor report in 2008 that “agents of the state” (so police and judges, for example) not be allowed to wear religious symbols (presumably someone at the front desk in the transportation department would be able to). Professor Charles Taylor renunciated the view that even “coercive agents” should not be able to wear religious clothing in 2017 because he thought the environment had changed and that people had misunderstood the recommendation and were extending it to child-care workers, for instance.

Is it necessary to deny people the right to manifest their religious beliefs in their clothing in order to have a secular workplace? The objective is to make it clear that Quebec is a secular society and that the public sector workplace should not exhibit religious doctrine, the retention of the crucifix in the location of the law-making body notwithstanding.

To be “secular” is to be not related or connected to religious matters. Thus, for example, no state body should begin their deliberations with a prayer or other invocation that calls on a religious figure. And one would think that a secular society would not have a cross or crucifix symbolically supervising its legislative deliberations. A secular state is neutral with respect to its religious identity, the opposite of a theocracy or even a country with a state religion. It is for this latter reason that whether individual workers are allowed to wear religious attire or not, the actual institutions of the state should not display religious artifacts that suggest a state-sponsored  or supported religion (such as the crucifix in the legislature).

The issue that Legault’s plan raises is the extent to which an individual’s private beliefs infuse the public realm. There is a distinction, I think, between the institution and its infrastructure and the people who work there. I would remove the cross (I’m not convinced that it is merely a cultural remnant of Quebec history that has somehow lost or transcended its religious character). Similarly, I would not permit individuals to “decorate” their public sector space (their office or cubicle, for example) with a religious item.

It probably goes without saying that no public sector employee should be required to wear any kind of clothing or jewelry that has a religious connotation. But does that mean that they cannot? Is an individual wearing a personal item of clothing transferring the beliefs related to that clothing to the state? Although I personally believe in a secular society and would prefer not to have public displays of religious belief, I believe that there is an argument to be made that an individual’s wearing of a yarmulke, turban, hijab or  a cross, for example, does not detract from the identity of the state as secular. Religious symbols behind the judge, on the classroom wall or at the entrance to the police station do, however.

A public sector employee is a hybrid being, both a representative of the state and a private individual. Accordingly, we have acknowledged that certain aspects of the employee’s private life should be accommodated. This is in part what employment standards and anti-discrimination provisions are about. We have loosened the restrictions on employees’ expression of their political views, as long as they do not express them in the workplace. The public sector workplace, that is, the civil service or bureaucracy or front-line activities, is meant to be politically neutral.

Is wearing religious attire more akin to the former or the latter?

Political beliefs may be important to an employee, but a political affiliation does not require the individual to wear particular clothing or jewellery. We know that a government will establish policies that are consistent or at least not inconsistent with their platforms, but we do not expect that individual decisions affecting us (whether we receive social benefits, obtain a liquor licence or receive a favourable decision from a judge or how our children are taught) to be affected by the public servant’s, tribunal member or teacher’s personal political beliefs). We do not know in the usual situation what the employee’s political beliefs are and they usually do not know ours. But political “neutrality”, as it were, goes beyond that. Except for political staff, and although this is not universal, obtaining a civil service position, or a teaching job, or (technically, at least!) being appointed a judge should not be dependent on one’s political views: it should not be affected by whether our political beliefs reflect those of the government of the day.

An individual’s religious views may be an important part of their identity, possibly more so than their political beliefs, and, unlike political affiliations, their religious beliefs may require them to wear religious “symbols” on their person, sometimes in the form of clothing. Their political beliefs should not affect whether they obtain employment. If they are required to wear religious clothing, that is, it is an indispensable part of their religious adherence, to refuse to allow them indirectly means that their ability to obtain employment is being affected by their religion.

The question becomes, then, whether allowing them to observe their religious beliefs through their clothing affects the extent to which the state is in fact secular and the extent to which it is perceived as secular.

While is is fair to say that public sector employees do represent the state, it is also fair to say that the state does not absorb its identity through its employees. A pluralist secular state appears to be that when its employees reflect in dress the multiple religious identities that comprise its character rather than suppression of those religious clothing and other outward signs that are clearly different from the majority and how the state initially appeared.

At the same time, the secular state must require employees with diverse religious beliefs to act in accordance with the rules and guidelines that govern the provision of services as long as these are non-religious in nature. The secular state acts, through its employees, in non-religious ways. Accordingly, while the wearing of religious clothing should not pose a barrier to employment, there may be challenges for employees whose religious beliefs conflict with their duties towards the public. In some cases, accommodation may address the conflict, but in others the resolution of the conflict must be in favour of the secular nature of the state. In this context, there is a difference between appearance and conduct.

There is much more that can be said on this issue. The implementation of a policy that permits the wearing of religious symbols personal to the employee, while ensuring the workplace is otherwise free of religious symbolism may seem contradictory. Permitting religious appearance, but not conduct consistent with particular religious beliefs, may seem hypocritical. What about religious views that have been accompanied by strong political beliefs elsewhere that have resonance in Canada?

My only intention here is to suggest a principled approach to respecting pluralism of belief in an important economic realm while maintaining the state’s secular nature. I suggest that it can be legitimately argued that secularism is best reflected in acknowledging that it accepts a pluralism of religious belief, including in the public sector workplace. This means that employees are allowed to wear religious attire or symbols, but they cannot perform their functions in a manner inconsistent with the demands of state neutrality.