At the hearings this week before the Quebec Court of Appeal about Quebec's secularism law — known as Bill 21 — only one lawyer out of more than a dozen who've addressed the court has worn a religious symbol.
Theodore Goloff is representing the Lord Reading Law Society, a group of Jewish lawyers and legal experts in Quebec.
When Goloff first made arguments in the case on Monday, he wasn't wearing a kippa.
When he reappeared Wednesday to make other points, he was wearing a kippa.
Goloff began his presentation Wednesday with a preamble, describing himself to the panel of judges as Jewish, a Québecois de souche (born in Quebec) and a lawyer, which he called a profession of trust.
Goloff, noting that he was wearing a kippa in court that day but not two days earlier, asked the panel of judges if his arguments before the court that day were any less legitimate than the ones he made two days earlier when he was wearing a religious symbol.
The moment was more of a coup de théatre than a legal argument, but in a debate that at its core is all about symbols, Goloff's gesture resonated.
Lawyer argues Bill 21 'guarantees inconsistency'
The purpose of this week's hearings is for the Quebec government and several civil liberties groups to present arguments about a Superior Court decision last year, which upheld most — but not all — provisions of Bill 21.
Enacted under the Coalition Avenir Québec government in June 2019, the secularism law prohibits public school teachers, police officers, government lawyers, a host of other civil servants and even some politicians from wearing religious symbols at work.
On Thursday, Goloff (this time sans kippa) built on the argument he began Wednesday, suggesting that Bill 21 was so imprecise and arbitrary that it could not be enforced fairly.
"The provisions of Bill 21 provide no consistency. They almost guarantee inconsistency," Goloff told the court.
Goloff gave the example of a wedding ring. He noted that for some people a wedding ring is a secular symbol. For others, including some jews, it has religious significance.
He said Bill 21 allows for the wearing of a wedding ring as a secular symbol, but not as a religious symbol.
He also noted that Bill 21 prohibits the wearing of religious symbols for some civil servants "while exercising their functions," but it's not clear precisely what that means.
"Where does the law apply? One section talks of geographic space, another section talks about when work is being done. If lawyer is working at home does Bill 21 still apply?" Goloff asked.
"If you have an arbitrator who's a religious Catholic working on his paperwork at home, must he or must he not remove his crucifix?" Goloff said.
The Superior Court judgment that is the subject of this week's appeal also noted Bill 21's various inconsistencies but ultimately ruled that the law could be upheld in spite of those inconsistencies.
Goloff argued that the Superior Court judge erred in that conclusion, and that citizens were entitled to clearly know the "sphere of risk" they were dealing with if they are potentially violating the law.
"It is incumbent on the legislator to answer these questions, and the legislator failed," Goloff said.
Thursday is the final day set aside for arguments in the case. An additional day has been set aside next week in case the panel has additional questions for the lawyers.
It will likely be months before there's a decision, and even then the matter is expected to be appealed to the Supreme Court of Canada.