Defying Shame

A number of institutions in Québec, notably Montreal’s Jewish General Hospital and the English Montreal School Board, have announced their intention to defy the Charter of Shame prohibiting their employees from displaying “conspicuous” religious symbols ― if, that is, the Charter is ever enacted. In other words, these institutions are threatening to engage in civil disobedience, in response to what they see as a law that goes against their core values. Although I fully agree, and have argued at length in previous posts too numerous to link to, that this law would be a great iniquity, I think that institutional civil disobedience in response to it would raise difficult questions, which have not so far been discussed.

Some of these questions are of the kind anyone who considers engaging in civil disobedience ought to address. The most general and fundamental one is what is it that justifies one in defying democratically enacted law. Of course, that question has been answered before ― perhaps most famously by Henry David Thoreau and Martin Luther King Jr. Interestingly, both Thoreau and King gave fairly elaborate (and quite different) explanations of what they regarded as the government’s proper role, in addition to saying why they thought the governments to which they were subject strayed so far from it as to justify disobedience. However vague, these explanations make it possible to judge their actions. As has been said on a grander but similar occasion, “a decent respect to the opinions of mankind requires that they should declare the causes which impel them” to take the positions they do.

But there is also a more specific question to be answered by those who would defy the Charter of Shame. Are they justified in engaging in civil disobedience in a situation where they can, instead, address themselves to the courts and have the law they intend to defy struck down? Thoreau’s differences with government of the United States were not of the justiciable kind; King faced a judiciary that was unwilling to give him the justice to which he was entitled under the U.S. Constitution. By contrast, there is every reason to believe that the The Charter of Shame will be invalidated by the courts. Why break the law, then, rather than use the procedure it puts at one’s disposal to obtain the result one seeks? It is a quicker way to that result, perhaps, but if one believes in the Rule of Law, must one not sometimes take the longer, but lawful road? It is one thing to engage in civil disobedience when that road is blocked; it is another one, and arguably subject to a heavier burden of justification, to do it when the road is wide open.

And then there questions which arise because those who now proclaim their intention to defy the Charter of Shame are not individuals, but organizations. Does it even make sense for an organization to engage in civil disobedience? Civil disobedience is closely linked to conscience ― and a organization might not have a conscience, as we are frequently reminded these days by those, on the American left, who angrily insist that corporations can have no right to free speech or free exercise of religion. Now, Thoreau at least had no doubts in this respect (though the point, I think, is rather tangential to his argument): “[i]t is truly enough said,” he wrote, “that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience,” and I am inclined to agree with him. However, this position is not entirely free from difficulties, some of them similar to those I discussed here. And note that my rhetorical move of speaking of limits on the government rather than individual rights, which I suggested as a solution to the corporate rights conundrum, does not work in the case of civil disobedience, which is very much an exercise of individual freedom, not the imposition of a limit on the government.

Perhaps more importantly, though, even if one concludes, as I think one should, that organizations ― Thoreau’s “corporations with a conscience” ― can, in abstracto, engage in civil disobedience, one should still think about their moral responsibilities in doing so. A person who engages in civil disobedience must be prepared to go to prison for it, as Thoreau and King were. But if such a person is indeed put to prison, the cost of his standing on his conscience is borne by him alone ― and maybe by his family. An organization such as the English Montreal School Board or the Jewish General Hospital cannot be imprisoned. But they can be deprived of funding, and perhaps even dissolved, both of which would hurt their employees whom they are trying to defend, and the people taking care of whom is their main job. As a quip in Soviet times had it, “Galileo’s neighbour scientist also knew that the Earth moved, but he had a family.” A principled stand that is commendable in a solitary individual like Thoreau, might not be for those with responsibilities to others, and especially for organizations with responsibilities to thousands of vulnerable people.

All that is not to say, conclusively, that the English Montreal School Board and the Jewish General are wrong ― only that their position raises questions worthy of serious thought. Of course, it may well be that this position is nothing but posturing, cost-less so long as the Charter of Shame is not enacted, which hopefully it never will be. But it might be, alas, and anyway, civil disobedience is a serious matter, which should not be threatened, I think, without having thought through its moral implications.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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