Bill 21 - What is actually Neutral?

Our story so far:

Section 90 of the Constitution Act, 1867 provides to the federal government of Canada an ability to disallow provincial legislation. Section 90 still exists, is still constitutional, although it hasn't been used since the 1940s. There is a good principled argument against using it, which has been expressed by Professor Peter Hogg, which is that - in its place - judicial review is always available to the federal government to challenge the constitutionality of a provincial law, and also that provincial "errors" that find their way into law may be later corrected by the conventional electoral/political process within the province. I very much agree with that approach, in general. However, there is an exception. Which is a provincial law that, by way of use of section 33 of the Charter (the notwithstanding clause), is largely exempt from judicial review, which negates Professor Hogg's first point. Such a law - as we can see in the Bill 21 case - is likely to be directed against an unpopular minority, meaning that the law is extremely unlikely to be corrected by the conventional political process, which negates Professor Hogg's second point. Therefore, the use of section 90 to void every law passed by every province that relies under section 33 of the Charter is a very good idea, fully in line with the fundamental principles that underlie our constitutional democracy. This is, in the result, a position that I urge all three federal party leaders to adopt, understanding that any province is free to pass any law without section 33 if it is prepared to argue in the independent courts of Canada that the law, to the degree it infringes *any* right under the Charter, can be "demonstrably justified in a free and democratic society."  Justice requires no less. 

Now, to continue the story, to the province of Quebec I would say: I generally share your stated purpose for the existence of Bill 21, which is to confirm the priority of the secular over the religious. But I suspect that that purpose is merely a fig-leaf around a desire to treat religious minorities, particularly Muslims, unfairly.  I say this because to place the secular over the religious does not require the overly broad action you have taken in Bill 21, which falls disproportionately on an unpopular minority. Indeed, as I will attempt to show below, it is entirely the wrong action if you really wish to reach your stated goal 

Consider this example: if there are 100 teachers in a high school, for example, and 90 are neutral on the religious clothing or symbols aspect (we will come back to the neutral idea later), and 6 teachers have some clothing or symbol associated with one religion, and 3 have clothing or symbols with another religion or faith, and one has clothing or symbols associated with still a third religion, what is the possible message to the students? That one of these religions is preferred over the other over the neutral? That the female students in the school are being encouraged to start wearing a hijab because a handful of female Muslim teachers wear it? Or that any other of the diverse and various religious articles of religious clothing are being endorsed by the school? Of course not. The message to the students from such a circumstance is quite the opposite. The message is that the secular state is, in fact, secular, and is strong enough and confident enough in its actual secularity to allow a broad range of minority religious expression, however idiosyncratic and archaic such expressions might be. This, it is clear, is the actual triumph of the secular over religious, which I support. 

Furthermore, is the so-called neutral majority really neutral at all? No, it is not, in such a case as described above, the 'neutral' is merely the stand-in for the conventional majority. The message in a high school where only the allegedly 'neutral' majority can be expressed, but minority religious faiths can not, is that the falsely portrayed 'neutral' religious position is the only approved and acceptable religious position. And that is a pretty good description of what Bill 21 is actually doing. And it is pretty obvious as well that that is what the law was meant to achieve all along. Furthermore, it is absolutely clear that the intense scrutiny that a Charter challenge would involve would quickly reveal this to be the case, which is why section 33 is being used. 

To that I say: the use of the section 90 disallowance power is a completely valid, proportionate, and appropriate response to the use of section 33 within Bill 21. Indeed, as the dithering of the federal government up to this point has made clear, it is the only constitutional response that is available.