#SochiProblems

There has been a great deal of talk over the last several months about the way one ought to react to the Olympics in Sochi in light of Russia’s ban on “propaganda of homosexuality” or whatever Russian prosecutors construe as “propaganda of homosexuality.” People have, in order of decreasing glamour and increasing effectiveness, boycotted a vodka which turned  out not to be made in Russia at all, raised rainbow flags, and made other, more sensible suggestions. But it seems to me that, although a lot has already been and is still being said on the subject, an important element is missing from this conversation. It is the fact that, while the “propaganda” ban certainly is homophobic, its underlying cause is authoritarianism as much as, if not more than, homophobia. What this means is that to really help Russian gays and lesbians (and all other Russians too), we must not only criticize and support the victims of a specific law, but the whole system of Vladimir Putin’s government.

Now this is not to say that this criticism and support are unimportant. People suffering as a result of the “propaganda” ban, and perhaps even more because of the wave of discrimination and violence that this signal of official homophobia has helped unleash. I would like to think that, for them, knowing that the world cares is at least a small consolation and source of hope. And the overt, shameless callousness of this law deserves its own response.

Nor do I mean to suggest, by saying that the “propaganda” ban is the product of authoritarianism, that a free Russia would a very gay-friendly place. Unfortunately, it would be no such thing. Freedom, democracy, and the Rule of Law are not enough to eliminate at a stroke the latent prejudices of society. But they do tend to make it rather less likely that these prejudices will translate into official policy, or that the authorities will let them run loose to the extent homophobia now does in Russia. Of course, there are some sad exceptions to this general trend, as Québec’s proposed ban on public employees wearing “ostentatious religious symbols,” which is calculated to discriminate against minorities (and especially Muslim women) and which Charles Taylor has rightly compared to the Russian anti-gay law, demonstrates. Still, such laws are both rarer and generally less malign in democratic countries. As, or more importantly, as I will shortly argue, free, democratic countries committed to the Rule of Law give their citizens the tools to fight and, at least over time, overturn those discriminatory measures that they do enact.

The reason Mr. Putin’s authoritarianism is key to understanding and deciding how to respond to the “propaganda” ban is that this law and the prominence of homophobic discourse more broadly are quite recent phenomena. What is not recent ― what has lasted for more than a decade now ― is a trend of small, unpopular groups being persecuted, whether with the active participation or with the silent connivance of officials. First ― before Mr. Putin even was elected President, there was the population of Chechnya, made the victim of a war designed to bolster his (theretofore nonexistent) credentials. Then (and to this day), it was political opponents and independent journalists. A businessman who supported opposition political parties imprisoned. Journalists who reported on human rights violations murdered. The rare media that still remain independent being denied access to their audiences. But then there were other victims. Later and still now, it was ethnic and racial minorities ― first African students, then immigrant workers from central Asia, who the victims of campaigns of murderous brutality, which the authorities have seldom done much of anything to stop. Gays and lesbians are only the latest on the list of the enemies of the Russian state. For a government that lacks the legitimacy that comes from prevailing over political opponents in a fair electoral contest (or indeed for one, like the PQ’s, which is committed to democracy but knows that its electoral prospects are dim), having enemies is probably indispensable to manufacture popular support. The enemy’s identity matters little, provided that he is weak and unpopular. In Russia, liberals, ethnic minorities, and LGBT people all are.

For this reason, and although, as I said above, it is important to oppose the “propaganda” ban and other forms of discrimination against gays and lesbians in Russia, the real solution to their problems must pass by the (re-)establishment in Russia of a free and democratic political system committed to the Rule of Law. Only such a system will not need to make minorities into scapegoats for its shortcomings and prejudice against them the only rallying point it can offer the people.

In addition, such a system would, unlike the present one, allow gays and lesbians ― as well as all other citizens, whether persecuted in their individual capacities or as members of unpopular groups ― to fight back and vindicate their rights. At present, it is not only equality that is absent from Russia. It is also, among many other rights and freedoms, freedom of expression and an independent judiciary. Yet as Jonathan Rauch argues in a fascinating and important guest-post at the Volokh Conspiracy, “[h]istory will show …  that gay marriage, and gay legal equality generally, owe their success not primarily to the 14th Amendment but to the First” ― not the one protecting equality, but the one protecting freedom of speech. The reason is simple: in order to have equality, you must persuade people to recognize you as their equal. You need to be able to speak to them. You need the freedom to make your case. And before you can insist on rights which on paper are yours, you need judges to know that nothing particularly bad will happen to them if they enforce them.

Once Russian gays and and lesbians have these basic rights, which (unlike equality rights which are of more recent vintage) we perhaps take so much for granted that we forget that others might lack them, we can hope, and indeed believe, that they too will in time succeed in having their equality rights recognized. Let us denounce and oppose homophobia. But let us not forget that, in Russia and elsewhere, it will not end without freedom, democracy, and the Rule of Law. 

Operation Dismantle at the Olympics

Citizens concerned that the deployment of a weapons system in their place of residence will expose them to an increased risk of a devastating attack turn to the courts to try to block the deployment. They fail. To a Canadian constitutional law junkie, that’s the short story of Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441. But that is also the story, on which the BBC reports, of a group of London residents who tried to challenge the decision by the British defence ministry to install a missile system on the roof of their apartment building as part of the security deployment for the upcoming Olympics. The High Court rejected their claim yesterday in Harrow Community Support Ltd v The Secretary of State for Defence, [2012] EWHC 1921 (Admin). But although the two cases can, I think, be fairly summarized in much the same way, there are substantial differences in the courts’ reasoning.

Operation Dismantle was an attempt by a coalition of civil society groups to block the testing of American cruise missiles in Canada on the ground that it increased the likelihood of nuclear war and thereby contravened Canadians’ right to the security of the person, protected by section 7 of the Charter. The Supreme Court had “no doubt that the executive branch of the Canadian government is duty bound to act in accordance with the dictates of the Charter” (455) – and that the judiciary could verify compliance with this duty even of a cabinet decision having to do with foreign policy (459).

However, the Court held “that the causal link between the actions of the Canadian government [in allowing the missile test to go forward], and the alleged violation of appellants’ rights under the Charter is simply too uncertain, speculative and hypothetical to sustain a cause of action” (447). Chief Justice Dickson insisted that judicial “remedial action will not be justified where the link between the action and the future harm alleged is not capable of proof” (456). The problem for the appellants was that given the inherent uncertainty of international relations, “it is simply not possible for a court, even with the best available evidence, to do more than speculate upon” (454) the consequences of the decision to allow missile tests. And as subsequent decisions of the Supreme Court show, the same can be true of other governmental decisions in the realm of foreign policy. Thus the actual consequences of the Supreme Court’s holding that “disputes of a political or foreign policy nature may be properly cognizable by the courts” (459) are rather less far-reaching than they might first seem to be. A sweeping assertion of judicial power is combined with a very cautious approach to its exercise.

The decision of the High Court might seem to be, in a sense, the opposite. Justice Cave-Haddon professes extreme caution, asserting that “[m]ilitary operational deployments for reasons of national security are matters for which the Government is answerable to Parliament and not – absent bad faith or acting outside the limits of the discretion – the Courts” (par. 27). And yet he makes – on the strength of a fairly scanty record quickly put together for an application heard on an expedited basis – detailed findings of fact, including a finding regarding degree to which the installation of the missile system makes the claimants’ apartment block more likely to be a terrorist target. Unfortunately for claimants, this degree is, in the judge’s view, nil. The claimants lose, but – purportedly – on the merits, rather than because their claim is inherently incapable of prof.

The reason for my skepticism as to whether this really is a decision on the merits is that the judge appears to have accepted with no reservations the government’s testimony, and in particular that of the general responsible for the military’s Olympics security deployment. Now it is not clear whether, or how seriously, the claimants challenged that evidence. But what seems clear enough is that much of it was opinion (about the missiles’ necessity, safety, etc.), not fact capable of proof in court. And even if we treat such testimony as expert evidence, what chance would the claimants have had to challenge it even if they had tried? A high-ranked military officer is, after all, presumably the best expert on such questions, and a court would be naturally inclined to defer to him.

Perhaps it is better simply to admit, as our Supreme Court did in Operation Dismantle, that the allegations of claimants in such cases are not capable of proof. Or to hold, as both the English High Court and our Supreme Court ostensibly did not,  that such cases are, quite simply, not justiciable.