The Quebec government's controversial plan for a new charter of values that separates church and state threatens to suck the province into a legal maelstrom.
It comes down to a question of competing values: freedom of religion on the one hand, a neutral state and freedom from religion on the other.
The Parti Québécois government is proposing "to entrench the religious neutrality of the state and the secular nature of public institutions" in Quebec's Charter of Human Rights and Freedoms. That neutrality principle is not part of Canada's Charter of Rights and Freedoms.
- Read about 5 things Quebec's values charter would do, and 5 it wouldn't
- Read a Q&A with philosopher Jocelyn Maclure about Quebec's religious symbols debate
Should the Quebec proposal eventually become law and then get to court, constitutional law professor Daniel Turp says the main legal issue will be whether the limitation is reasonable according to both the Quebec charter, which came into effect in 1976, and the Canadian charter, which came into effect in 1982.
The concept of religious neutrality of the state has replaced the idea of separation of church and state in most modern constitutional discussions. As the idea goes, the neutral state has no religion and does not favour any religion, thereby respecting everyone's beliefs.
The new Quebec proposal, however, limits freedom of religion for some by placing restrictions on the wearing of conspicuous religious symbols. The focus has been on "state personnel," but the Quebec government also wants to "make it mandatory to have one's face uncovered when providing or receiving state service."
The Harper government has taken the position that the latter is sometimes a reasonable limit on individual freedom – as when it banned wearing face coverings at citizenship ceremonies in 2011.
But on Tuesday, Multiculturalism Minister Jason Kenney addressed the Quebec plan, saying "we are very concerned about any proposal that would discriminate unfairly against people based on their religion."
If the Quebec government's proposal does become law, Kenney said the federal government will review it.
Turp teaches at the University of Montreal and was a Parti Québécois member in the Quebec national assembly. He explained to CBC News that the Quebec government's concern is with the conspicuous symbols that, because of their visibility, could be a neutrality issue, in which a government employee could be seen as putting forward their religion.
He argues that this is another step in the way the provincial government has secularized Quebec society since the 1960s, but with this one "showing more divisions or concerns and will be the objective of great debate."
University of Ottawa constitutional law expert Carissima Mathen agrees, but says if the objective is religious neutrality and secularism, it's not clear if that's a sufficient reason to limit religious freedom.
"The sheer desire to have a secular-looking state and civil service is not something that has to date been accepted as what we call an important enough objective."
Mathen says the eventual challenge for the Quebec government will be convincing the courts that "this public policy goal is important enough to, in effect, prevent [state personnel] from wearing religious symbols that do not in any other way interfere with anyone else's rights, do not pose public safety concerns, do not pose identity concerns in a context where no identity is really important."
Regarding face coverings when people deal with the government, Mathen says the government may be on safer legal ground with arguments around safety, security or identity issues, but based specifically on the physical act of covering, not merely on religious symbolism.
Conspicuous vs. small religious symbols
Mathen also sees problems with the distinction the Quebec government wants to make between conspicuous and small religious symbols. "The individual freedom is determined by the person's set of beliefs, and note that for some religious groups, the religious symbols are more conspicuous," Mathen explains.
She views the Quebec proposal on religious symbols as all about surface appearance and questions whether that's "a persuasive enough reason to regulate what people wear."
She says that at present, there isn't law to support that. The PQ government "will say it's an expression of current Quebec values, but Quebec does not have the power to institute a set of values oriented around secularism that undermines the freedom of religion that is enshrined in the Canadian charter."
The courts have long viewed the two charters — Quebec's and Canada's — as complementary, with the Quebec charter containing amplified guarantees around social and economic rights. But Mathen says the Quebec proposal "will take the Quebec charter along a path that is quite different from the Canadian charter."
Turp says that if secularism and state neutrality become entrenched in the Quebec charter, "that's new ground that the Supreme Court of Canada will have to deal with, because it hasn't been in a position where it needs to interpret what is the meaning of secularism."
The national assembly's crucifix
Although the government wants to limit the wearing of conspicuous religious symbols by government employees, it says the crucifix on the wall in the Quebec national assembly can stay, because it is part of Quebec's heritage.
Turp takes issue with that position, which he views as "inconsistent with the principle that religious symbols should not be overtly visible in public institutions."
Mathen says that the government's decision on the crucifix weakens its objective. "It's the extra latitude afforded for one religion, which happens to be the religion of the majority population, that makes the ability to provide a consistent constitutional argument more difficult, because they are allowing for exceptions."
So far, Quebec has only produced documents that present the orientation of its policy, and what really matters is the language in the bill, which is expected in late November or shortly after.
When the debate centres around religion, it's fair to say the devil is in the details.