Ask Not

I have written more than enough about the oath of allegiance to Queen that would-be Canadian citizens have to take, but I have thought of an analogy that I like and which just might help us think the matter through. The Canadian citizenship is like marriage ― not necessarily in some romantic or esoteric way, though there is perhaps that too ― but in that it is a legal status into which anyone who fulfills some conditions prescribed by law is entitled to enter upon making a solemn, public statement before an official. For citizenship, the statement in question is the oath of allegiance. For marriage, it is the exchange of vows. The text of both the oath and the vows (for civil marriage) is prescribed by statute.

So let’s assume that the vows prescribed for civil marriage include a promise of fidelity, as the vows prescribed for religious marriages do. And imagine a couple of swingers who want to get married ― but keep their swinging lifestyle. The state tells them they must promise to be faithful to each other ― otherwise, no marriage. Would they be justified in challenging the constitutionality of the vows the state imposes on them, arguing that they could not in good conscience keep their preferred lifestyle after making such vows? (I am assuming that swinging in itself would be constitutionally protected by the liberty guarantee of s. 7 of the Charter ― just as “loitering” is: see R. v. Heywood, [1994] 3 S.C.R. 761.) Some might say that the vows of fidelity, properly understood, do not preclude a swinging lifestyle with the consent of the other spouse. But, as I explained yesterday, the Supreme Court has held that courts must respect people’s understandings of their conscientious duties. That holding, in Syndicat Northcrest v. Amselem2004 SCC 47, [2004] 2 S.C.R. 551, was in a religious context, but I’m not sure that there ought to be a difference here. What we are talking about is a solemn vow, not just a business contract (for which a court can impose its own interpretation on a party). I, for one, would be inclined to think that the such a constitutional challenge should succeed.

Now as it happens, the solemn statement required of a party to a civil marriage in a Canadian province contains no promise of fidelity or indeed any other vow. (Ontario’s, which seems fairly typical of common law provinces, only says “I do solemnly declare that I do not know of any lawful impediment why I, AB, may not be joined in matrimony to CD.”) I know very little about family law, so I have no idea whether there is a particular reason why, unlike the religious vows, this statement does not contain any promises, but perhaps this is for the reason I am trying to get at with my analogy: the state should not extract any promises from citizens, beyond of course a standing undertaking to keep the law. Since there is no law against swinging or adultery (and if there were, such a law would surely be unconstitutional), the state would not be justified in demanding that people forbear from it as a condition for acquiring a status that is otherwise open to them.

I think it is the same for citizenship. Since not feeling “true allegiance” to the monarchy is not against the law, the state should not be imposing it as a condition for acquiring it. Whether or not you like swingers and republicans, there are things you ought not to be demanding of them.

Empty Promise

I wrote yesterday about the challenge now being considered by the Superior Court of Ontario to the constitutionality of the wording of the oath of allegiance that would-be Canadian citizens must swear or affirm. The oath requires one to promise loyalty and fidelity to the Queen, her heirs, and successors. As I explained, the Federal Court of Appeal rejected a similar challenge almost 20 years ago, in Roach v. Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 F.C. 406 . But Charter jurisprudence has developed a good deal since then. Enough to make the new challenge succeed? Maybe not, but I tend to think it should.

The claimants argue that requiring them to pledge faithful allegiance to Queen as a condition for granting them their Canadian citizenship is a violation of their fundamental freedoms of conscience and religion, opinion and expression, assembly, and association, protected rights under the various subsections of s. 2 of the Charter, and of their equality rights under s. 15. Some of these claims strike me as implausible. This is especially the case of the argument based on freedom of assembly ― I have a hard time seeing how it might be implicated, especially in any way distinct from freedom of speech and association. The claim based on the freedom of association, in turn, also seems largely derivative of the one based on freedom of opinion and expression.

The equality claim, at first glance, might seem more serious. People born into Canadian citizenship are not required to swear the oath of allegiance as people who seek naturalization are. This might be treated as a distinction on the ground of citizenship, which the Supreme Court has long held was “analogous” to those specifically mentioned in s. 15 and thus an impermissible ground of discrimination. In his dissent in Roach, Justice Linden suggested that the oath requirement might amount to discrimination between anti-monarchists who want to become citizens and those who already are and thus need not swear allegiance to the Queen. But keep in mind that the claimants are not saying that requiring them to take the oath is in itself discriminatory. On the contrary, they emphasize the fact that they are prepared to take an oath to respect Canadian laws ― just not an oath to be faithful to the Queen. Their objection is thus not really to a distinction between citizens and non-citizens, but to the content of oath. This is not a claim about equality.

The essence of the claim is, in my view, somewhere at the intersection of the freedom of expression and freedom of conscience. The claimants say that they are made to say something that they do not believe and that will bind them in conscience not to express or act on their beliefs in the future. I think that it is at least arguable that this is a breach of subs. 2(b) (expression) and 2(a) (conscience) of the Charter.

A case that comes to mind on this point is Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, in which an arbitrator ordered the appellant to provide the respondent a reference letter the terms of which were specified by the arbitrator. The Court agreed that this order breached the appellant’s freedom of expression. Over a vigorous (and in my view compelling) dissent by Justice Beetz, the majority of the Court said that the breach was justified under s. 1 of the Charter, but one important point in its reasoning was that the compelled statements were limited to largely uncontested facts ― the appellant was not made to state an opinion. Of course the context of this case (a labour arbitration) is quite different from that of the citizenship oath, but I think it is relevant nonetheless.

There are also two serious arguments against the applicability of subs. 2(b) and 2(a) here.

One is that the applicants aren’t actually compelled to take the oath. They do not have to become citizens. If they do not want to take the oath, they can simply go on living in Canada as permanent residents, as the late Mr. Roach did until his death. Indeed, it might be said that citizenship is not a right but a privilege, so one cannot complain about the terms on which it is granted. The latter argument would be mistaken though. Surely it would be unconstitutional for Parliament to bar people from being naturalized on the basis of, say, their race or national origin. Why then could it do so on the basis of their political opinions? But it remains the case that coercion is not so clear in this situation as it was, for instance, in Slaight. Yet I’m not sure that that should matter. The Citizenship Act speaks of a “right to citizenship”, and provides that “[t]he Minister shall [emphasis mine] grant citizenship to any person who” meets the statutory conditions. The taking of the oath is a requirement that a person who is already entitled to citizenship must fulfill. In the United States, if I understand correctly, there is a doctrine of “unconstitutional conditions” that prevents legislatures from restricting people’s rights as a condition to obtaining something to which a statute otherwise entitles them. The Supreme Court of Canada, so far as I remember, has never considered such a doctrine, but it is at least arguable that it should be part of our law too.

The other argument against the claimants is that, as the majority of the Federal Court held in Roach, they simply misconstrue the oath and its import, and that, understood correctly, it is nothing more than an expression of loyalty to the existing constitutional order, which would not prevent the claimants from continuing to work for a constitutional change that would transform Canada into a republic. I think this argument has great force. The Queen and the Windsor dynasty are only symbols for the government and the constitution. It is in this capacity, for example, that the Queen is named as a party to every criminal case. She does not personally rule, so there is no way in which a Canadian citizen might be meaningfully said to be loyal or disloyal to her, rather than to the government or the Constitution. One might also add that the claimants accept to swear an oath to respect Canadian laws ― yet chances are that they find at least a few of those unjust. That doesn’t prevent them from swearing the oath and then working to have those laws changed. Why is monarchy different?

The problem with this argument is that, reasonable though this interpretation of the oath might be, it is not that of the claimants. And, in matters of religion, the Supreme Court has held (rightly in my view) that it is not some officially correct or objective view of religious duty that courts must apply ― it is the claimant’s own view of his or her duties, provided that it is sincerely held. If this rule is extended to matters of (non-religious) conscience, then we must accept the claimants’ position, which is surely sincere even if unreasonable, that the oath would bind them in conscience to stop their anti-monarchist activities, and thus is a breach of their freedom of opinion and expression.

Thus I am actually inclined to think that the oath requirement should be found a breach of subs. 2(a) and/or 2(b) of the Charter, though I suspect that courts might be loth to reach this conclusion. Of course, even if they do, there still remains the possibility of a justification under s. 1 of the Charter, that would “save” the infringement of the claimants’ rights and make it constitutional. Indeed, in most cases under subs. 2(a) and 2(b), that’s where “the action” really is.

But this case is different, I believe. Monarchist though I am, I fail to see any good arguments that the government might invoke to justify the current wording of the citizenship oath. To begin with, it’s not even clear whether the oath serves any “pressing and substantial” objective, the first prong of the s. 1 test. Whatever purpose the oath serves is evidently not so pressing as to make it mandatory for the vast majority of Canadians who are simply born into their citizenship. Even if the oath has some kind of symbolic purpose such as expressing the importance of citizenship, it is not clear how the reference to the Queen specifically is connected to that purpose. As a matter of both law and practical reality, we are citizens of Canada, not subjects of Her Majesty (as was the case before the introduction of the Canadian citizenship distinct from the status of British subject in 1947). Finally, the current oath is not surely not minimally impairing (assuming, of course, that it is at all impairing) of the claimants’ rights, since even Australia, a fellow Commonwealth realm of which the Queen is the head of state ― does not require an oath of loyalty to the Queen.

Enough. As I suggested above, I wouldn’t bet on the citizenship oath being found unconstitutional, but I think that it is a close and difficult question. On balance, I believe that the claimants should prevail. The oath either means too little or requires too much. Either way, it is an empty promise.

True Allegiance

When I became a Canadian citizen, more than 10 years ago now, I had, a according to the Citizenship Act, to affirm

that I [would] be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.

(The requirement to make this affirmation or to swear an oath is flows from par. 3(1)(c) of the Act; the text is in the Schedule.)

Most new citizens are probably not very enthusiastic about swearing allegiance to Her Majesty; I certainly wasn’t at the time, though my views have since changed. But a hardy few outright refuse to swear the oath, and are trying to challenge its constitutionality, as the Globe and Mail reports.

It is, in a way, an old story. Charles Roach, who led the effort to have the oath declared unconstitutional until his death last year, had his first attempt to do so struck by the Federal Court of Appeal in Roach v. Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 F.C. 406, as disclosing no reasonable cause of action. More than a decade later, Mr. Roach and a number of others renewed the attack, this time in the Superior Court of Ontario. This time, the challenge was framed as a class action on behalf of all those “who for reasons of conscience, object to taking an oath of allegiance to her Majesty … and who because of their said objection have not become citizens of Canada or became citizens by taking the oath under duress.” The federal government failed in its attempt to have their application struck, while the applicants’ attempt to proceed by way of class action was denied in Roach v. Canada (Attorney General), (2009) 185 CRR (2d) 215. That decision, if I understand correctly, also struck their claim for damages.

What is left, then, at least if there have been no substantial amendments to the application in the intervening four years, is a claim that the oath as it is set out in the Schedule to the Citizenship Act is a violation of the “fundamental freedoms” protected by s. 2 of the Canadian Charter of Rights and Freedoms (freedom of conscience and religion; freedom of thought, belief, opinion and expression; freedom of assembly; and freedom of association), and of the equality guarantee in s. 15(1) of the Charter (amounting to discrimination between citizens and non-citizens, the latter not having to swear allegiance to the Queen in order to enjoy the benefits of citizenship). According to the Globe, the applicants say that they are quite willing to swear to observe Canadian laws, but, because of political or religious convictions, will not swear an oath to the Queen.

***

I will say a few words here about the Federal Court of Appeal’s 1994 Roach decision, and will try to have some substantive comments on the merits of the new challenge in a separate post.

The Court of Appeal was split, with Justice MacGuigan writing for the majority and Justice Linden dissenting. The dissent is rather more elaborate than the brief majority judgment, so it is worth starting with it. It is important to keep in mind, however, that because the case was an appeal from a motion to strike, the question was only whether it was plain and obvious that the Charter challenge had no chance of success, so Justice Linden’s opinion that it was not does not necessarily mean he thought Mr. Roach should ultimately prevail.

Justice Linden’s observes that

[a]n oath or affirmation … is not a matter to be taken lightly; when, for reasons of conscience, a person feels he or she cannot swear a certain oath or make a certain affirmation, one must carefully consider that position, for it shows that that person takes the oath seriously, something we wish to support.

As for Mr. Roach’s claims, he would have held that it is not “plain and obvious” that the oath of loyalty to the Queen does not prevent its taker from holding, expressing, and acting on anti-monarchist beliefs, even though such an interpretation (which the majority endorses) “makes sense”; thus there is at least a chance that a claim based s. 2(b) of the Charter, which protects the freedom of opinion and expression, would succeed. Similarly, Justice Linden thinks there is at least a chance that Mr. Roach would prevail in his freedom of association claim, on the basis that taking the oath would prevent him from associating with fellow republicans. Finally, Justice Linden would also have let stand the claim that the oath breached the Charter’s equality guarantee (s. 15), because the oath is only required of would-be naturalized citizens, and not of people born in Canada. He agrees with the majority in rejecting claims based on freedom of conscience and religion, freedom of assembly, and protection against cruel and unusual punishment.

The majority, however, concludes that none of Mr. Roach’s claims had any chance of success. It holds that

the oath of allegiance has to be understood to be binding in the same way as the rest of the Constitution of Canada not forever, nor in some inherent way, but only so long as the Constitution is unamended in that respect [and that] [i]t is a matter of common sense and common consent that it is neither unconstitutional, nor illegal, nor inappropriate to advocate the amendment of the Constitution.

The oath thus only binds the person who takes it to respect the constitution as it stands at the time the oath is taken, while leaving him or her entirely free to advocate change, at least so long as the change would be done in accordance with the constitution itself. Thus the “fundamental freedoms” claims have no chance of success. Nor does the equality claim. For one thing, the burden of actually taking the oath is trivial. For another, since the oath does not curtail one’s freedom to work for constitutional change,

what our country may come to be …  is for millions of Canadian citizens to work out over time, a process in which the appellant can himself share, if he only allows himself to do so.

The disagreement between majority and dissent, then, is largely about the import of the oath. What does it mean to “be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second”? And, importantly, does it matter that the person who refuses to take the oath takes a different view of what it entails than Parliament and/or the judiciary? These are not easy questions. I will try to have more to say about them, and the others that the case brings up, shortly.

Religious Freedom Is (a) Right

The Globe’s Doug Saunders has produced a very unfortunate op-ed this morning, arguing that “religious freedom” is at best redundant, at worst positively harmful, and that Canada should not be in the business of promoting it. The occasion for his outburst is the upcoming creation of the Office of Religious Freedom within the Department of Foreign Affairs. That may well be a poor idea, even a sop by the government to religious conservatives. Even if Canada should be in the business of promoting individual rights abroad, there is no reason why religious freedom should be privileged over other fundamental liberties. Yet Mr. Saunders’ arguments are confused and go too far. It is one thing to say that the Office of Religious Freedom is a bad idea; it is another to claim, as he does, that “religious freedom” is either a useless concept or a slogan for religious bigotry and repression.

Mr. Saunders points out that “[t]he phrase ‘religious freedom’ is evoked [sic―I wonder if he meant ‘invoked’]” by all manner of intolerant groups who, in fact, want the state to repress other religious groups with whom they disagree. He argues that “the most important religious freedom is freedom from religion”―the freedom not to have someone else’s religion imposed on you by the state. As for the freedom of belief and worship, it is sufficiently “protected in constitutional freedoms of speech, thought, conscience, assembly and basic equality.” The additional category of “freedom of religion” is hopelessly vague and in any event unnecessary. Indeed, says Mr. Saunders,

the core values of our common culture, the things that make us Western and modern – democracy, equality, the rule of law – were forged through the rejection of religion and the overthrow of spiritual authority.

If there’s anything we should be doing abroad, he concludes, it’s ensuring the separation of church and state. Not fighting for “religious freedom,” whatever that means.

One wonders whether Mr. Saunders has seriously engaged with what has been said and written about religious freedom in the last 300-odd years. His claims about the history and meaning of religious freedom are badly mistaken.

Start with the history. It is not the case that democracy, equality, and the Rule of Law developed in opposition to religion. Arguably the most influential defender of such values was also one of the first great champions of religious freedom―John Locke. So were the American Founders. It would have been much more accurate to say that these values developed in parallel, indeed that religious freedom was historically the first individual freedom. The sovereignty of the individual was first asserted in matters of faith, well before it was thought of asserting it in the realm of politics too.

Now to the meaning of “religious freedom”. Like that of any other individual right, it can be said to be vague. It is not exactly clear what “freedom of expression” means, or “equality”, or “liberty”. That said, it is indisputable that freedom of religion has a negative aspect―that it is, among other things, a right not to have the faith of others imposed on you. The very first Supreme Court case dealing with freedom of religion, R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, was about that. Other rights, by the way, have a similar “negative” aspect―freedom of speech, for instance, is (or should be, notwithstanding the Supreme Court’s decisions to the contrary) not just the freedom to say what you want, but also the freedom not to say what the government wants you to say. That doesn’t detract from the importance of the “positive” side of the right. In the case of religion, we might speak, following the U.S. First Amendment, of the “free exercise” of religion, to go along with non-establishment. And free exercise of religion is not reducible to the other rights on which Mr. Saunders wants to rely for its protection (except maybe freedom of conscience, but this happens (unfortunately) to be poorly theorized and, insofar as it has a modicum of clear meaning, it refers to a protection for specifically non-religious conscientious beliefs). For example, the Sikh boy who felt a religious duty to wear a kirpan to his public school wasn’t exercising a right to free speech (his kirpan was hidden inside his clothing, he wasn’t displaying it to send a message to anyone), or freedom of association (it wasn’t about his right to associate with coreligionists, or anyone else for that matter). It was straightforwardly a claim of religious freedom―a claim, in Lord Acton’s words, “to be unhindered by man in the fulfillment of duty to God.”

That such claims by others can be abusive or self-serving does not mean that we should renounce our commitment to religious freedom. Whether it is a good idea to single it out for promotion abroad is an entirely separate question.

The Good of Religion

Yesterday I attended a discussion with Robert P. George, the Professor of Jurisprudence at Princeton (which of course does not have a law school!) and one of the leading religious conservative public intellectuals in the United States. The topic was “Religious Liberty and the Human Good.” David Blankenhorn – perhaps best known recently as a failed would-be expert in the trial on the constitutionality of Proposition 8, which attempted to change California’s constitution to prohibit same-sex marriage – was the host. He is clearly smarting from the Prop 8 experience, and took some shots at President Obama along the way, but it was quite interesting nonetheless, so here’s a recap.

According to prof. George, freedom of religion is valuable for two reasons.

The less important one is that it allows the existence of organizations that provide all sorts of important social services and are authority structures that act as a buffer between the state and the individual, so that the state does not become the only source of authority. Religious organizations help prevent tyranny, which the judiciary alone is not able to do. For my part, I do not find this persuasive. There are many alternative power centres (the press and NGOs for example) and networks (online social networks for example). Religious structures are, at most, some of many, and perhaps not the best candidates as oppression-resisters (the Catholic church, for example, has a long record of collaboration with temporal powers, as well as one of resistance to them). And of course religious structures can be oppressive in their own right – though they need not be.

The more important reason why freedom of religion is important is that it serves what prof. George called “the good of religion” – that is the human ability to ask, and answer for oneself, fundamental questions about human nature, life, mortality, free will, etc. A life spent without thinking about these questions is impoverished; and it is important to have one’s own answers to them, and to live with integrity in light of the answers one comes up with. Even if these answers are not “religious” as the term is usually understood – even if they are atheistic for instance – they are worthy of protection, because it is the questioning that constitutes “the good of religion.” That seems exactly right to me, whether or not “the good of religion” is the best name for what prof. George is getting at.

A related term (which I might be more inclined to use instead) is “conscience”. Prof. George defines it as “one’s last best judgment informed by reason, belief, or faith as to what one is required to do or not to do.” Referring to Cardinal Newman’s take on the subject, he insists that it is not “in the business of permissions.”

Mr. Blakenhorn brought up the subject of “reason” in religious belief. He is mad at Judge Vaughn Walker, who presided over the trial in the Prop. 8 case, Perry v. Schwarzenegger, for finding that religious motivation could not constitute a “rational basis” for prohibiting same-sex marriage.  Prof. George agrees that religion has an element of reason – we can understand someone acting on his answers to “ultimate questions,” for instance – and argues that Judge Walker has an impoverished, “fideistic” view of religion as consisting only of faith, without a rational element. But it seems to me that the important question here, which he did not get into at all, is whether religious reason can count as a valid one for public law purposes. Even if we agree – as I do – that a person acting on religious (or conscientious) beliefs is not acting irrationally, it is a different matter whether the state (and thus voters) are entitled to act on such reasons – and still a different matter whether they are entitled to act on such reasons only – in making public policy. This is the Rawlsian public reason conundrum, which I cannot possibly get into here (and don’t have firm views about anyway).

Finally, prof. George spoke about religious exemptions – cases where a law that is generally not meant to punish or impede religious belief or practice has that effect on some believers. He thinks that these believers should be exempted from the application of such laws, unless the state can show that not granting the exemption is the least restrictive means of furthering a compelling state objective. There is, however, an interesting question about who – courts or legislatures – should be deciding whether any given case comes satisfies these criteria. That is roughly what I argued in my LL.M. thesis, which was about religious exemptions, so I am glad to have my thoughts confirmed. Now why don’t the law reviews to which I submitted the paper seem interested to publish it?