Yeesh, so I used a Policy Options article by Mario Polèse as a springboard to critique the terrible idea that there are “two secularisms”. Other than making this very common mistake, Polèse’s article was not bad. But almost inevitably, someone took his “two secularisms” idea and ran with it.
This new article, “Why the Supreme Court should leave Bill 21 alone”, is by Ed Whitcomb, and its “reasoning” is pretty predictable and transparent. The thesis is stated in the headline. But why should the Supreme Court leave Bill 21 alone. Well, basically, because Ed Whitcomb likes Bill 21, and he doesn’t want it struck down, or criticized.
Yup, that’s pretty much the contention, surrounded by dire warnings of separation should the rest of Canada “impose their values” on Québec. (The “imposed” values, of course, being a basic respect for fundamental human rights.) The arguments are terrible; you’ve heard most of them before—“blah, blah Quiet Revolution therefore it’s okay to discriminate against minorities now!”—but since they are presented in slightly more dignified form than the average Bill 21-supporting bigot, it may be worthwhile to pick them apart.
I mean, I have some time on my hands, so, might as well.
There! Are! Four! Lights!
Let’s start with what Whitcomb sees as the different “sides” of the dispute:
There are four sides in this dispute and all are, in a way, correct. Canadians living in Quebec should have the right to wear religious symbols. Quebecers should have the right to be served by civil servants who do not indicate their religious preference. The Quebecois should have the right to decide what laws their government passes. And Canadians have a duty to protect the rights of Canadians everywhere. The problem is that these legitimate rights are irreconcilable. The questions, then, are a) which ones will prevail and b) who will make the decisions?
It’s a pretty bold rhetorical trick to fire off a stream of good points… but somewhere in the middle of them, sneak in some rank bullshit, so your opposition becomes flustered trying to identify and extract the turd among the gems.
Let’s break out those four “sides” and see if they all are, in a way, correct:
Canadians living in Quebec should have the right to wear religious symbols.
Quebecers should have the right to be served by civil servants who do not indicate their religious preference.
The Quebecois should have the right to decide what laws their government passes.
Canadians have a duty to protect the rights of Canadians everywhere.
Let’s start at the top:
Canadians living in Quebec should have the right to wear religious symbols. I mean… yeah. Canadians living anywhere in Canada should have that right, subject only to limits required by public safety and the rights of others. The principle shouldn’t be limited to Canadians either: everyone, everywhere, should have the right to wear religious symbols. Any jurisdiction where that is not true is, by definition, repressive.
Let’s skip down to the last “side”, because it is the other one in the set about “Canadians” generally, rather than specifically Québécois:
Canadians have a duty to protect the rights of Canadians everywhere. Again obviously true, and again, universally true. I find it interesting, and quite telling, that Whitcomb doesn’t seem to think Québécois have a duty to protect the rights of other Québécois. Why is this a duty that non-Québécois only have?
Let’s look at #3 now:
The Quebecois should have the right to decide what laws their government passes. Sure… but… within constitutional limits. Neither Québec nor Canada is a land of mob rule. The Charter—both the federal and Québec flavours—exists to protect the fundamental rights of minorities from the tyranny of the majority. Any time in history the whims of the majority have overruled the fundamental rights and freedoms of the minority has in time come to be seen a tragedy. It’s worrying that Whitcomb so conveniently forgets the limits of democratic rule when it doesn’t suit his preferences… but then just as conveniently remembers them when hand-wringing about “dictatorship of the majority” on the Supreme Court.
And, finally, the real turd in the mix:
Quebecers should have the right to be served by civil servants who do not indicate their religious preference.
I’ve written about this kind of “thinking” many, many times. It’s usually those who are most comfortable abrogating the rights of others who are most cavalier about inventing new “rights” for themselves.
Where does this “right” to be served by bland, undifferentiated human simulacra come from? Where was it first derived and defined? What human rights instruments does it appear in? Whence does it source its justification and legitimacy? I suspect I would have to turn to Whitcomb’s proctologist for the answers.
I can play this game and make up bullshit “rights” too. I could say that “Québécois have a right to served by civil servants who do not indicate their country of origin”, and then require all civil servants to take speech therapy to disguise any accents or linguistic tics that might offend someone who lived through the Quiet Revolution. I could even “justify” it by riffing on the standard “suppose person of religion A is uncomfortable with religion B, and has to deal with someone from that religion in public Québec society” pearl-clutching, argumentum ad passiones.
So of the four sides, two are correct, one is partially correct—correct with qualifications—and the fourth is a completely unjustified and unjustifiable assertion.
Now that we’ve whittled crap out of the collection, is it still true that these “sides” are irreconcilable? Well… no, they’re completely reconcilable. They just don’t reconcile the way Whitcomb wants them to. That’s why he had to throw the spanner in the works… but simply removing his garbage makes the machinery of truth and reason sing harmoniously again.
Some interesting arguments!
Whitcomb rehashes all the tired, old Bill 21 arguments: “muh Quiet Revolution!”, “won’t someone think of the (bigot) immigrants who suffered under religion?” But buried in the trash, there are some actually interesting arguments. Not good arguments… but noteworthy ones.
The entirety of the interesting arguments in the article all come in a single paragraph:
When Bill 21 was passed, Prime Minister Justin Trudeau mused that governments should not be involved in matters of personal clothing, but his own government’s Criminal Code prohibits nudity. All Canadian governments force their citizens to choose between faith and career because many jobs require work on Sundays and Fridays, and devout Christians or Jews who insist on honouring their Sabbath cannot demand those jobs. Others may be barred from certain jobs if their headgear, beards or other practices present a health or safety problem. These people all chose between faith and career. There is nothing new here.
Let’s pick it apart.
Whitcomb is entirely correct to call out Trudeau’s hypocrisy on regulating clothing. But that’s about where any pretense at integrity in reasoning comes to an end. Because Whitcomb’s thinking goes: you are in the wrong on this issue… therefore we can be in the wrong too! Somewhere on the path toward his PhD, Whitcomb seems to have forgotten his kindergarten lessons: two wrongs don’t make a right.
Yes, criminalizing nudity is wrong. It’s a holdover from the days of puritanical religious influence over the law. It should be expunged from the Criminal Code… not taken as a source of inspiration for even more restrictive laws.
I’d be almost tempted to at least give Whitcomb a few points for pointing out Liberal hypocrisy, if that weren’t such an easy game to play.
And then there’s this:
All Canadian governments force their citizens to choose between faith and career because many jobs require work on Sundays and Fridays, and devout Christians or Jews who insist on honouring their Sabbath cannot demand those jobs.
Now, I don’t know if Whitcomb is being deliberately deceptive, or if he’s just clueless, but the assertion above has the merit only of being technically true by virtue of some very careful wording choices.
In point of fact, with the very notable exception of Québec, all Canadian governments do not “force” anyone to choose between faith and career unless there are health and safety issues, or other practical concerns. If someone’s faith introduces problems with their ability to do their job, then governments are required to find a reasonable accommodation for that person’s needs. For example, if someone’s religion precludes working on Fridays, then the public employer should either allow them to work a different day (Monday–Thursday, and then Saturday or Sunday instead of Friday), or simply allow them to work only four days, perhaps with extra hours to compensate.
Now, if the job is such that it is simply impractical to allow them to switch days… if they must work Fridays… then, yes, the person will have to “choose between faith and career”. This is the sense in which Whitcomb’s assertion is “true”. But to get to that point, the public employer must provide a reasonable justification for why working on Fridays is absolutely essential, without possibility of a workable compromise. The employer cannot simply say that it it “annoys” (Whitcomb’s word) them that the employee cannot work Fridays. That’s the part that Whitcomb slides past.
If there were some health or safety concern that precluded the wearing of religious symbols while on the job, then fine: believers will have to compromise, or choose. But you can’t simply say you just don’t like to look at them, or that the sight of them triggers fear in you, or that they “annoy” you… all of which are essentially the entirety of Whitcomb’s case. That’s just being bigoted, and while individuals have a constitutionally protected right to be bigoted assholes, the state does not, and should not.
So, here we are again, with all the usual beats in the Bill 21 hit parade:
“It’s okay for Québec to discriminate against minority religions because of its history.”
No, Québec’s history might explain its intolerance for minority religions (though, of course, Québécois seem cool with all the Catholic regalia in, on, and around its National Assembly building). It does not excuse it.
“Some people might have a problem with some religions, and may be upset at being reminded of their existence while receiving some public service.”
Again, whatever sob story you concoct to explain a person’s prejudice or intolerance, that does not excuse it.
Even if it did, it does not justify legislating that particular person’s prejudices and not somebody else’s; I could just as easily hypothesize a scenario where someone came from a place where secular authorities repress religion (like, maybe, Québec!), and would in fact be comforted by the sight of public servants freely and openly living their faith.
“Québec is a distinct society, and you have no right to criticize it!”
You know what? Fuck off with that bullshit.
Every person, everywhere in the world, has the right to criticize injustice wherever they see it. Period. Every Canadian has the right to criticize Québec when it discriminates against minorities. Every Québécois has the right to criticize Canada, Ontario, BC, or wherever when they discriminate against minorities. Every Canadian and Québécois has the right to criticize the US, the UK, France, Saudi Arabia, or wherever when they discriminate against minorities.
The cry of “you have no right to criticize us!” is the last bastion of the bigot who’s exhausted all other defences of their injustices.
The ultimate thesis is that Whitcomb doesn’t want the non-Québécois justices on the Supreme Court preventing Québec from discriminating unjustly. He doesn’t want the injustice of Bill 21 challenged by “outsiders”.
If Bill 21 were legitimate and just, there would be no need to fear more criticism. Whitcomb’s fear betrays his knowledge that he is not on the side of justice.
If he’s counting on the three Québec justices to support the xenophobia and bigotry that underlies Bill 21, he’s gambling on a long shot. Even if they ultimately allow the law to stand, thanks to the notwithstanding clause, I can’t see them singing its praises. I can’t see Nicholas Kasirer, in particular, thinking Bill 21 is sound. Chief Justice Richard Wagner will probably say the law should stand because he shies away from overriding legislators… but again, I can’t see him enthused with what Bill 21 stands for. Suzanne Côté is a wild card, because she tends to get blinker-focused on minutia, so it’s hard to guess what she might fixate on.
Whatever the Supreme Court decides, there is no rational excuse to fear their opinions. I don’t think a Québec–rest-of-Canada split is likely; I suspect the total result will jibe with the Québec-only split, if any. But even if not, I think it is dishonest and cowardly to try to cow Supreme Court justices from considering a case just because it’s not from their home province. I’m pretty sure Supreme Court justices are able to consider Québec’s distinctiveness when weighing their decision.
I’m going to close by quoting one of Whitcomb’s closing lines, just to show the wrong-headedness of his thinking:
Simply put, the right to “freedom of religion” does not include the right to offend members of the public when working in government jobs.
Now that is a nuclear case of missing the point. “Freedom of religion” does, in fact, include the right to offend bigots, whether working in government jobs or not, in exactly the same way that “being black while working a government job” absolutely does come with the right—and, indeed, the privilege—to offend white supremacists.
On the flip side, being “offended” by the sight of someone’s religion—or, indeed, any characteristic that is a protected class—does absolutely not give you the right to demand they lose their jobs. Or rather, it does give you the right to demand it… but not to expect it, because no employer that respects their employees fundamental rights and freedoms should respond to your bigoted and hateful request.
And that’s what Bill 21 is. Legislating that otherwise tolerant employers must cater to the bigotry of the ignorant and hateful.