First of All Our Laws

Natural law in a Québec Court of Appeal decision in 1957

Starting with the Reference re Alberta Statutes, [1938] SCR 100, but mostly in the 1950s, the Supreme Court of Canada issued a series of decisions which came to be known as upholding an “implied bill of rights” in the Canada. The actual holdings of these decisions were often relatively narrow ― they held, for example, that provinces could not outlaw political or religious ideas, because doing so was part of Parliament’s criminal law power. Yet both the obiter comments of some judges and the general trend of these cases seemed to give a fairly clear indication that the Supreme Court would, to some extent at least, resist the arbitrary exercise of both legislative and executive power in Canada, and protect civil liberties.

Understandably less well-known are the decisions of the lower courts that tended to the same effect. In Morin v Ryan, [1957] Que QB 296 (CA), for instance, the Québec Court of Appeal awarded damages to a plaintiff it founded to have been defamed by being characterized as a “militant communist” ― a decision F.R. Scott described as “a healthy check on incipient McCarthysm”. Another such decision, which I have recently come across, is Chabot v School Commissioners of Lamorandière, (1957) 12 DLR (2d) 796.  Like many of the “implied bill of rights decisions” it concerned the religious freedom of Jehovah’s Witnesses ― in this instance, in the context of a school system organized along religious lines.

The applicant’s children were attending a Catholic public school ― the only kind there was in their rural municipality. After the family joined the Witnesses, the parents wrote to the school to request that the children not be required to take part in the daily prayers and to study religion-related content. What we would now call a “reasonable accommodation” seems to have worked well enough for a while, but eventually ― perhaps after some trivial misbehaviour by the children, though many of the judges seem quite skeptical of this ― the arrangement broke down. The children were expelled, and the school authorities made it clear that they would only re-admit them on condition that they take part in the full programme of religious activities. The father sought a mandamus to compel the school to admit his children with the condition that they be exempted from religious exercises.

At the Court of Appeal, the case was heard by a bench of seven judges ― a testament, I take it, to its special importance. Six sided with the father. Justice Rinfret, as he then was (Édouard Rinfret, that is, not to be confused with his father Thibodeau Rinfret, the Chief Justice of Canada), dissented, protesting that

no one wants to place any obstacles in the way of the religious liberty of the appellant or his children, no one aspires to force him to send his children to the school of the commissioners; if he does it, it is of his own volition, because he wanted to; but if it is his wish and if he insists on sending them there, he is obliged to … follow the regulations [as to religious exercises and studies] established by competent authority. (826)

The law, after all, allowed religious “dissentients” to establish their own schools. If the Chabot family was one of the few, or even the only one, in its small town, that was not Catholic, the law paid no heed to that; they should still set up their own school, or comply with the rules of the Catholic majority.

But the majority did not see it this way. For them, the issue was one of religious liberty ― and indeed of natural rights. On its face, to be sure, the case was about interpreting the applicable legislation and regulations, and deciding whether they were ultra vires the province, notably in light of some of the already-decided “implied bill of rights” cases. Justice Casey, for instance, starts by putting the case before the court in this context:

During the past few years our Courts have been called upon to consider those fundamental rights commonly called freedoms of speech and of religion, and while differences have arisen in solving specific problems, never has the existence
of these rights been put in doubt. (805)

But, more than in those cases, the judges who decided Chabot were explicit in their references to implicit rights prior to positive law and which guided their interpretation and application of that law. Thus Justice Pratte says that “it appears useful to recall that the right to give one’s children the religious education of one’s choice, like freedom of conscience, is anterior to positive law”. (802) Having quoted a couple of English decisions to this effect, and a passage from Aquinas cited in one of them, Justice Pratte writes that

if one considers natural law, first of all our laws, it is necessary to conclude that children who attend a school are not obliged to follow a religious teaching to which their father is opposed. (802)

Similarly, Justice Casey was of the view that “[w]hat concerns us now is the denial of appellant’s right of inviolability of conscience [and] interference with his right to control the religious education of his children”, which rights “find their source in natural law”. (807). Justice Hyde (with whom Justice Martineau agreed), also took the position that the school authorities’ position amounted to an assertion that they could

force upon [non-Catholic children attending Catholic schools] the teaching of the Roman Catholic Church and oblige them to go through forms of worship in accordance with that faith. It requires no text of law to demonstrate that this cannot be so. (813; paragraph break removed.)

Justice Taschereau (that is André Taschereau, not to be confused with his cousin Robert Taschereau, then judge on the Supreme Court and later Chief Justice of Canada), sounded a perhaps slightly more Dworkinian note:

It would … be contrary to natural law as well as to the most elementary principles of our democratic institutions that a father could not exercise the right or fulfil his obligation to instruct his children without renouncing his religious faith (834; emphasis added.)

Of the majority judges, only Justice Owen was more cautious, saying that “[t]here are differences of opinion as to the nature of [religious freedom], whether it is a civil right
or a political or public right”, although he too had no difficulty in concluding that it “is a right which is recognized and protected in Canada”, while pointing to limited legislative, and no constitutional, authority.

Now, it is not entirely clear quite what relationship between positive and natural law the judges envisioned. Certainly they were prepared to let natural law guide their choice between plausible interpretations of ambiguous legislative provisions, and either to read down or to declare ultra vires regulatory provisions inconsistent with their chosen interpretation and thus with natural law. But would they go further and actually invalidate positive law for inconsistency with natural law? None of them finds it necessary to do so, but there is at least a hint that they might. Justice Hyde seems to suggest that compliance with natural law might be a constitutional requirement, saying that the school authorities’ power to determine the curriculum

cannot be construed to override [a] basic principle of natural law. It would require very specific provisions in the Act to that effect to justify any such interpretation and then, of course, the constitutionality of such provisions would be a matter for consideration. (813)

Justice Casey might be going further still, stating that rights which

find their existence in the very nature of man … cannot be taken away and they must prevail should they conflict with the provisions of positive law. Consequently if the regulations under which, rightly or wrongly, this school is being operated make it mandatory that non-Catholic pupils submit to the religious instructions and practices enacted by the Catholic Committee then these regulations are ultra vires … and invalid. (807; emphasis added)

That said, the same Justice Casey cautions that

while in principle no one should be coerced into the practice of a religion, or subjected to compulsion in following outwardly the dictates of conscience, or prevented from practising as he sees fit the religion of his own choice, this immunity disappears if what he does or omits is harmful or opposed to the common good or in direct violation of the equal rights of others. (805)

Meanwhile, Justice Pratte suggests that Québec’s education system was designed so as to “take into account the rights of the family in the matter of education.” (800) His and his colleagues’ decision, then, might only rely on natural law the better to advance the positive legislator’s objectives, as well as to protect natural rights.

The majority’s overt invocation of natural law reads like something of a curiosity sixty years later. The rights it sought to uphold have, more or less, been subsumed in the positive protections of the Canadian Charter of Rights and Freedoms ― and, perhaps even more so, in Québec’s Charter of Human Rights and Liberties. Nevertheless, the questions the Court addresses are also very modern. The issue as stated by Justice Taschereau ― whether a parent “[c]an … be obliged to renounce his religious beliefs as a condition to the admission of his children to a public school of the school municipality where he lives?” (832) ― is exactly the same as that which faced the Supreme Court in Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 SCR 256, the kirpan case. The answer the Supreme Court gave was not as novel as its critics keep on pretending it was, nor did it have to hinge on constitutional provisions which some of them affect to find illegitimate. Half a century before Multani, Québec’s highest court came to similar conclusions, on the basis of what it ― rightly in my view ― saw as truths antecedent to, and more permanent than, any constitution.

Splitting a Baby

There came a Catholic school and a minister of education unto the Supreme Court, and stood before it. And the school said, “Oh my Lords and my Ladies, I am a private Catholic school, and am delivered of a programme for teaching a class on Ethics and Religious Culture through the prism of my Catholic faith. And when I besought the minister for leave to do so, he would not let me, though my programme be equivalent to the one he requires.” And the minister said, “Nay, but thy programme is no wise equivalent to the required one, for that programme is secular and objective, and thine religious.” Thus they spoke before the Court. Then the Court said (having deliberated a year, and with three of the seven judges present disagreeing), “Fetch me a sword.” And they brought a sword (a metaphorical one) before the Court. And the Court said, in Loyola High School v. Quebec (Attorney General), 2015 SCC 12: “Divide the programme in two, and give half to the one, and half to the other.”

More specifically, the majority (consisting of Justice Abella, who wrote the judgment, and Justices Lebel, Cromwell, and Karakatsanis) holds that while Loyola cannot be forced to teach its students about Catholicism from the rigorously secular and neutral perspective favoured by the minister, it can be required to teach the “ethics” element of the class from such a perspective. (Loyola itself does not object to adopting this posture for teaching students about other religions.) The majority orders the Minister to reconsider the denial of an exemption necessary for Loyola to teach the class according to its own programme rather than the one imposed by the Minister in light of its reasons.

This case was widely expected to produce a clear statement about the nature and extent of the religious rights of organizations under the Charter, since Loyola is a (non-profit) corporation. However, Justice Abella’s reasons seem to punt on that question, invoking instead “the religious freedom of the members of the Loyola community who seek to offer and wish to receive a Catholic education.” [32] Loyola was entitled to seek judicial review of the Minister’s decision, and in doing so to argue that the Minister failed to respect the rights of others.

Because the case arose by way of judicial review of an administrative decision, Justice Abella takes the approach developed in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, according to which the administrative decision must reflect a reasonable balancing of “the Charter protections — values and rights — at stake in their decisions with the relevant statutory mandate” [Loyola, 35]. But reasonableness, here, “requires proportionality” [38] and, indeed, is the exact counterpart of the (last two stages of) the “Oakes test” applied to determine the constitutionality of statutes.

Applying this framework, Justice Abella begins by pointing out that the statutory scheme under which the Minister operates makes provision for exemptions which must be granted to programmes “equivalent” to those designed by the government. This possibility would be meaningless, she observes, if “equivalent” were understood as “identical.” Besides, “[t]he exemption exists in a regulatory scheme that anticipates and sanctions the existence of private denominational schools,” [54] and, therefore,

a reasonable interpretation of the process for granting exemptions from the mandatory curriculum would leave at least some room for the religious character of those schools. [54]

In effectively requiring Loyola to teach the entire class, including the parts dealing with the Catholic religion itself, from a secular and neutral perspective, the Minister failed to make allowance for its denominational character. That decision

amounts to requiring a Catholic institution to speak about Catholicism in terms defined by the state rather than by its own understanding of Catholicism. [63]

Justice Abella finds that it would be possible to let the school teach its pupils about Catholicism in accordance with its own understanding of its faith without compromising the ministerial objectives for the Ethics and Religious Culture class. The Minister’s decision is, to that extent, unreasonable, because it not restrict religious rights as little as possible.

By contrast, Justice Abella finds that so long as Loyola is allowed to teach the Catholic religion and ethics from the Catholic perspective, it can be required to teach the remainder of the “ethics” part of the course “objectively.” While this may be “a delicate exercise” in the context of a denominational school, and “Loyola must be allowed some flexibility as it navigates these difficult moments,” [73] the requirement that it do so is not an infringement of anyone’s religious freedom, and does not compromise the school’s religious identity. Indeed, the requirement of objectivity is very important, lest

other religions … be seen not as differently legitimate belief systems, but as worthy of respect only to the extent that they aligned with the tenets of Catholicism. [75]

It is all about “how the discussion is framed” ― Catholicism’s “own ethical framework” must be a “significant participant rather than [a] hegemonic tutor.” [76]

The concurrence (a judgment by the Chief Justice and Justice Moldaver, with the agreement of Justice Rothstein) disagrees on with the majority about this, arguing that the teaching of ethics is inextricably linked to that of religions and, in particular, that the teaching of ethics generally cannot be neatly separated from the teaching of the Catholic perspective on ethics, as the majority’s conclusion would require. An attempt do so “poses serious practical difficulties and represents a significant infringement on how Loyola transmits an understanding of the Catholic faith.” [156]

On its way to this conclusion, the concurrence also takes a very different approach from the majority. For one thing, it squarely addresses the issue of institutional religious freedom, suggesting that corporations are entitled to assert this right “if (1) it is constituted primarily for religious purposes, and (2) its operation accords with these religious purposes.” [100] And for another, the concurrence does not even pretend to apply Doré and its deferential standard of review, saying that

[t]he Charter requirement that limits on rights be reasonable and demonstrably justified may be expressed in different ways in different contexts, but the basic constitutional requirement remains the same. [113]

On this last point, I agree with the concurrence. The pretense of deference under Doré is useless if there really is no difference between “reasonableness” and “proportionality” as the majority suggests. Actually, I think that, contrary to what the majority suggests, there ought to be a difference. While it is true that the Supreme Court has often relaxed the Oakes test, allowing the government to infringe rights not by the “least restrictive means” possible but by one of a spectrum of “reasonable alternatives,” it has also repeatedly suggested that such a relaxation is not appropriate in all circumstances. And in cases where there is a real difference between “reasonableness” and proportionality” ― deferring to a government’s interpretation of Charter rights intended to constrain it is outright pernicious.

What I like less about the concurrence reasons is the way in which it limits the scope of organizations’ rights to religious freedom and, specifically, the requirement it proposes that only those organizations “constituted primarily for religious purposes” be entitled to assert this right. The concurrence does not explain why other organizations, including for-profit ones, should not be allowed to do so, at least if they can show that “their operation accords with” religious principles. The question was not before the Court in this case, and there was no need to answer it at all.

Whether the majority was right to evade the issue of the religious rights of even primarily religious organizations, I am not sure. Admittedly it is difficult to imagine situations where such an organization would not be able to assert the claims of at least some of the members of its “community,” as Loyola was in this case, so perhaps it is, indeed, unnecessary to answer that theoretically vexing question. But there is something to be said for theoretical clarity, at least on matters well and truly before the Court.

As for the outcome, I also agree with the concurrence. I find the majority’s belief that Loyola can plausibly separate the religious teaching of Catholic ethics and the “neutral” teaching of other ethics difficult to countenance. I am also perplexed by the majority’s professed concern at the “risk” that Loyola’s students won’t see other religions as “differently legitimate.” Of course they won’t. Religions are not politically correct. They don’t talk about people being “differently spiritually abled.” They talk of prophets, believers, and heretics. If you cannot accept that, you cannot accept religious freedom at all. Still, it could have been worse.

Perhaps it will yet be. The majority, and indeed the concurrence, repeatedly emphasize the fact that Québec’s legislation specifically provides for exemptions for classes “equivalent” to those required by the government, and that the government’s stated objectives for the Ethics and Religious Culture course can be achieved by classes taught, in whole or in part, from a religious perspective. But what if the provision for exemption is removed, or the objectives re-written ― a bit like Parliament criminalized (half of) prostitution after the Court seemed to make its legality a key factor in its analysis in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, where it struck down the prostitution-related provisions of the Criminal Code. As it happens, the King James Bible describes the women who came to seek the judgment of Solomon as “harlots.” I do not mean to suggest anything of the sort about either Loyola or the Minister of education, but this case might have an eerie air of Bedford about it.

All in all, then a rather unsatisfactory decision, and not a very well argued one. The majority’s reasons, in particular, are full of equivocation. Not only is the outcome a dubious compromise, but almost every step of the analysis is a fudge. Do organizations have religious liberty rights of their own? We’ll tell you later. The applicable test is “reasonableness,” but it’s no different from “proportionality.” Exemptions must be granted, but perhaps only if the law allows for exemptions in the first place. Schools must be allowed flexibility in structuring their classes, but here’s how to do it. The problem with splitting so many babies in half is that one risks looking more like Herod than Solomon.

UPDATE: Over at Administrative Law Matters, Paul Daly weighs in, mostly on Loyola‘s treatment of the relationship between constitutional and administrative law. Speaking of Justice Abella’s “application of the reasonableness standard, it is difficult to discern how it is more deferential than, or analytically distinct from, proportionality.” It is indeed. Shauna Van Praagh also makes some important observations in the Globe, although I’m skeptical about her proposal to “make the Loyola judgment part of the ERC curriculum in all its variations.” The judgment, for the reasons I set out above, does not strike me as a pedagogical model.

No Blurred Lines

Last week, I published a lament for the Charter challenge to the Canadian citizenship oath, which the Supreme Court refused to hear, over at the Policy Options blog. Philippe Lagassé has published a thoughtful response, arguing that contrary what I have been saying all along, the case really was about “the legitimacy of the Crown” as a part of the Canadian constitution, so that its rejection was a good thing, because it prevented this legitimacy from being undermined. In particular, prof. Lagassé argues that

[h]ad the courts found that the appellants’ individual interpretation of the oath should trump the constitutional sense, the line between personal views and legal fact would have been blurred. The Crown would no longer have any definitive meaning; instead of personifying the Canadian state, the Queen could plausibly be whatever anyone believes she might be. Suffice it to say, we would not accept this with respect to other public institutions. Individuals are not free to interpret parliamentary statutes in any way they want, for example. Similarly, we expect court rulings to be respected, notwithstanding our personal disagreements with their reasoning. It’s unclear why we shouldn’t afford the Crown the same standing, except for the fact that the monarchy is contentious. If the case had gone the other way, the Crown would arguably have become a lesser part of the constitution as compared to Parliament and the judiciary, one that can be disregarded if it clashes with our personal beliefs.

As I’ve already stated here, I am a monarchist myself, and have no wish to see the Crown a lesser part of the constitution. Fortunately, however, that would not have been the consequence of a judgment in favour of those challenging the oath.

Indeed, there are two ways of arguing this point. One is to say that the government coercing speech is, regardless of that speech’s content a violation of the freedom of expression, which must be justified under s. 1 of the Charter. I will not elaborate on this point here, partly because I am hoping that Ben Oliphant will do so over at Policy Options (no pressure!), and mostly because I think that, although legally correct and sufficient, this argument obscures what is really going on with the citizenship oath.

The other response to prof. Lagassé’s concerns, which I find more attractive, addresses instead of avoiding the content of the oath. Indeed, it focuses on what is really distinctive about it. As I argue in greater detail in a paper published last year, an oath requires the oath-taker to work out for him- or herself the precise nature of the obligations he or she subscribes as a result of taking it. The oath will typically describe those obligations in inherently terms ― such as “allegiance” in the case of citizenship oath ― which are not only inherently vague but also require moral judgment in order to applied to specific situations.

This is in contrast to statutory commands and judicial decisions, to which prof. Lagassé compares the citizenship oath. The contrast with judicial decisions is perhaps most obvious. Court orders tell those at whom they are aimed exactly what to do. Pay the plaintiff 10 000$. Stop dumping your factory’s waste into the river. Re-write the statute within a year or see it become unenforceable. Indeed, impossibility to formulate a precise order can be reason for a court to refuse to intervene in a dispute.

Statutory commands aren’t always as definitive, because they can use standards as well as bright-line rules, the standards used in statutes normally appeal to understandings that are widely shared and the subject of substantial agreement among those whose behaviour is regulated (whether the society at large or some specific group). Perfection in this regard is unattainable, but complete failures ― statutes that fail to guide behaviour to the point of not lending themselves to meaningful judicial debate ― can be declared unconstitutional. We may have to consult a lawyer to figure out the meaning of statute, but we need not consult our consciences.

Swearing the citizenship oath requires one (if one takes the oath seriously, which admittedly most of those who take it probably do not) to do just that. Indeed the oath would be quite unnecessary if it did not. A citizen is already bound by laws regarding treason and others which set out his or her legal obligations to the state (or to Her Majesty as its embodiment). If the oath ― not just the specific oath to the Queen, but any form of citizenship oath ― is not to become entirely redundant, it must be regarded as imposing not legal obligations, but conscientious ones.

Once this is understood, the response to prof. Lagassé’s concerns becomes clear. Our legal system does not impose its own understandings on people’s consciences. And sometimes ― though not always ― it makes exceptions to its own rules in order to accommodate people’s conscientious objections. This does not mean that the rules to which we make exceptions lack a definitive meaning, or have a lesser standing than others, or that we blur the line between personal views and legal fact.

Consider the case of a Sikh student who wants to wear a kirpan to school. Let’s say the school considers the kirpan to be a weapon. The student, however, considers it to be a religious object, and wearing it a religious duty. The school can have a general rule prohibiting weapons ― but, as the Supreme Court has decided in Multani v. Commission scolaire Marguerite‑Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6, it must still allow the student to bring his kirpan. Now in Multani, the general prohibition did not define a weapon. But what if had done so, and the kirpan clearly fell within that definition? Surely, it would ― and should ― have made no difference to the Court’s decision. That decision would not have meant that the definition was unclear or unimportant, or that the student’s views could replace the “legal fact” of its meaning. What it would have meant is that, because of the conflict between legal fact and conscientious belief, the state had to justify (under s. 1 of the Charter) its insistence on overriding such belief, and that in this particular case, the state’s justification was unpersuasive.

Similarly, in the case of citizenship oath, the question is not whether the Crown has a definitive meaning in Canadian law, but whether the state has sufficient justification to impose this legal meaning on people whose conscientious understanding of a duty of allegiance to that Crown differs from the legal one. To acknowledge that the state doesn’t have good reason to do so would not have compromised the position of the Crown in Canadian law.

A Parade of Horribles

I wrote yesterday about the decision of the Court of Appeal for Ontario in McAteer v. Canada (Attorney General), 2014 ONCA 578, which upheld the constitutionality of the oath of allegiance to the Queen which would-be Canadian citizens are required to swear. As I said in that post, I believe that that the Court’s decision is profoundly wrong, as was that of the Superior Court (McAteer v. Attorney General of Canada, 2013 ONSC 5895). In my view, the Court of Appeal (and the Superior Court before it) was wrong to focus on the applicants’ mistaken interpretation of the oath of allegiance as a commitment to the person of the monarch rather the notion of a (constitutional) Crown. The fact that the applicants misunderstand the oath and they exaggerate the obligations that taking it would impose on them cannot end the inquiry into the oath’s constitutionality.

Before explaining why this is so, however, I want to highlight two problems with the Court’s discussion of the meaning of the oath. These problems might not be fatal. I take the point that, as for example Philippe Lagassé explains, the reference to the Queen in the citizenship oath really is a reference to “the state and the source of all sovereign authority,” so that the Court of Appeal is right about the oath’s legally correct meaning. My objection is, as I will explain below, that this is really beside the point. Still, some of the Court’s arguments are problematic, and may colour the rest of its analysis, so they are worth pointing out.

One problem I see is with the Court’s discussion of the history of the oath of allegiance and its place in our constitutional structure is incomplete in that it begins with the Royal Proclamation of 1763 and the Quebec Act, 1774 ― and thus ignores the history of oaths of allegiance in England. The Court uses this history to present the oath as egalitarian and inclusive by virtue of its lack of religious test, while masking its authoritarian origin in the times of Henry VIII and his struggle to assert not only his religious, but also his secular power following his break with Rome, detailed in an excellent recent paper by Liav Orgad. This is, in my view, something of a historical whitewashing. The oath of allegiance is certainly less burdensome now than it used to be, but if one relies on its historical significance, one cannot ignore its origins.

The other point I want to make here concerns the Court’s invocation of the “principle of harmonization” to “suggest” ― although not, as I read the decision, to hold ― “that the oath to the Queen in the Citizenship Act cannot be a violation of rights under the Charter” (par. 58) because it is virtually identical to an oath which the Constitution Act, 1867 requires members of Parliament to swear and which, being constitutionally entrenched, cannot be invalidated on Charter grounds. The Court is simply wrong here. On its logic, since a house of a legislature is authorized to exclude media by virtue of its constitutionally entrenched parliamentary privilege, there would be no constitutional difficulty with a court doing so either; yet the Supreme Court has held that the exclusion of the media from a courtroom infringes s. 2(b) of the Charter, and that while the existence of a discretionary power to exclude is justified under s. 1, this power must be exercised with the Charter in mind. Immunity from Charter review conferred by constitutional entrenchment is an exception, and there is no reason to extend it to rules which are not constitutionally entrenched.

Whatever role these errors have played in its reasoning, the crucial, fatal flaw in the Court of Appeal’s decision is the weight it gives to the applicants’ misunderstanding of the oath. The Court repeatedly cites a passage from R. v. Khawaja, 2012 SCC 69, at par. 82, where the Supreme Court held that “a patently incorrect understanding of a provision cannot ground a finding of unconstitutionality,” but it is inapposite. Even assuming that this holding applies beyond the context of allegations chilling effect, in which it was specifically made (the full sentence, from which the Court only cited an excerpt, is: “a chilling effect that results from a patently incorrect understanding of a provision cannot ground a finding of unconstitutionality” (emphasis mine)), it does not apply to the oath because the oath is not a “provision.” An oath, as I argue in a forthcoming paper, is not a simple statutory command to do or not to do something. It is an appeal to a the oath-taker’s conscience; it requires the oath-taker to work out the exact nature and scope of the duties it imposes. Oaths are typically (although admittedly not always) required when these duties are impossible to delineate with sufficient specificity, and thus cannot be codified in a statutory provision. The duty of loyalty imposed by the oath of allegiance is a perfect example. The Citizenship Act does not define what it means for citizens to be loyal, to “bear true allegiance” in the words of the oath. Citizens must do that themselves. So while it makes sense to reject an idiosyncratic interpretation of a statutory command, one cannot so easily dispose of a subjective understanding of an oath. The failure to appreciate this taints the Court’s analysis under s. 1 of the Charter, and is at least partly responsible for its rejection of the applicants’ claims that the oath infringes their right to freedom of conscience and religion.

However, before it gets there, the Court commits another blunder by finding that the imposition of the oath does not infringe the freedom of expression of those who must swear it. It the Court’s view, the purpose of the oath is not to “control expression,” while its effects on freedom of expression are merely incidental and do not deserve disapprobation. The claim that a requirement to make a statement with an obvious expressive content does not aim at “controlling expression” is astonishing. The Court asserts that “[t]he substance of the oath and the history of its evolution also support the conclusion that the oath does not have a purpose that violates the Charter” (par. 74), but however innocuous or even worthy the contents of the oath might be, there is no getting away from the fact that the requirement to swear it is a requirement to engage in expression. Indeed, as the Court itself says with approval, “[t]he application judge held … that the purpose of the oath ‘is … one of articulating a commitment to the identity and values of the country'” (par. 72; emphasis added). How one can find that requiring people to a articulate a commitment does not control their expression is beyond me.

Despite its finding that the oath does not infringe s. 2(b) of the Charter, the Court of Appeal moves on to a s. 1 analysis. This draws heavily on the judgment at first instance, and my criticism of that decision applies to that of the Court of Appeal. The Court’s “reasoning” is largely conclusory, such as its bald, unexplained assertion that “[r]equiring would-be citizens to express a commitment to the quintessential symbol of our political system and history serves a pressing and substantial objective” (par. 92). It ignores the alternative forms of the oath that would do a better job of letting people express commitment to Canada and its constitution because they would be better understood. It notes but fails to seriously address the pervasive misunderstanding of the current oath, which extends to government officials, and does not question the capacity of such a widely misunderstood oath to have any meaningful positive effects on those who take it or for their fellow citizens.

Then again, perhaps the Court reveals (albeit unwittingly) its true opinion of the worth of the oath when it notes complacently that a person who swears it is free to recant it without any sort of consequence. Imagine, for a second, a witness who recants his oath to tell the truth; and then imagine, further, a judge who tells him that this doesn’t really matter. The Court is oblivious to the incoherence of asserting that the oath is not a real imposition on citizens because it is meaningless and can be dismissed while arguing that it serves a pressing and substantial objective and has obvious salutary effects.

Finally, the Court also errs in its treatment of the freedom of conscience religion claims. For one thing, because it fails to appreciate the way in which the oath differs from an ordinary statutory command by enlisting the conscience of the person who swears it, the Court again overemphasizes the applicants’ misunderstanding of the oath. As I explain at greater length my paper, in matters of conscience and religion, subjective understandings are determinative, even if mistaken by some external standard. For another, the Court is wrong both to reject the remedy of exempting those who object to the oath from the obligation to take on the ground that such an exemption would undermine its secular character, and to implicitly conclude that since the applicants’ proposed remedy is unavailable, their substantive claim must be rejected. First, exemptions for religious (and arguably conscientious) objectors have been granted and considered by the Supreme Court, without any argument to the effect that they undermined the secular nature of the rules involved. The fact that Sikh students can wear their kirpans to school in derogation to the general rules prohibiting weapons does not undermine the secular character of these rules. But even if an exemption were not a permissible remedy, the obvious alternative is to invalidate the requirement for everyone, not to maintain it. (This is the Supreme Court’s approach in cases of cruel and unusual punishment ― the Court regards exemptions to mandatory minimum sentences as inappropriate in that context, and requires the mandatory minimum to be struck down.)

The applicants have already said that they would appeal to the Supreme Court. Adam Dodek has tweeted that he expects the Supreme Court to deny leave and, for what it’s worth, I suspect that he is right. But it would be nice if we were wrong. The decision at first instance in this case was bad, and the Court of Appeal’s is, if anything, even worse. It is a parade not merely of mistakes, but of judicial horribles. A cynic who wanted to argue that it is the product of a purely result-oriented reasoning would have some evidence to back up his claim. Regardless, this ruling ought not to be left to stand.

Mammon & Co.

I have already blogged about the question whether corporations can assert religious rights, for example to ask for exemptions from generally applicable laws if these laws contradict their ― or their owners’ ― religious beliefs. In a decision issued this morning, Burwell v. Hobby Lobby Stores, which Eugene Volokh summarizes here, the Supreme Court of the United States answered that question in the affirmative. Because this case  has attracted a great deal of attention and commentary, it is a good occasion to come back to the question of “corporate religious freedom,” although, as usual, I do not express an opinion as to the correctness of the Court’s decision as a matter of U.S. law. My concern is with first principles.

According to Justice Samuel Alito, who wrote the majority opinion, recognizing and protecting corporations’ religious rights serves

to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment  protection [against unreasonable searches and seizures] to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. (18)

And protecting corporations’ religious freedom “protects the religious liberty of the humans who own and control those companies.”

Indeed, the U.S. government was prepared to respect the religious beliefs of some corporations ― those whose mission was not primarily to make a profit for their owners. The issue of corporate religion in Hobby Lobby was thus not whether any corporations could have religious beliefs entitled to protection, but rather where, if anywhere, to draw the line between those who could have such beliefs and those which could not. The government (and the dissent) argued that the line should be drawn at the making of profit. The majority questioned why this should be so, pointing out that prior cases acknowledged the capacity of profit-making businesses (albeit not organized as corporations) to bring religious claims, and noting that

modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval,support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives. (23)

The majority opinion, however, suggests a line of its own, between “closely-held” and publicly traded corporations. At least, it purports only to consider the situation of closely-held corporations, suggesting that the question of corporate religious rights is very unlikely to arise in the case of “corporate giants” (29) or publicly traded corporations more generally.

Does either of these dividing lines make sense? Or should all corporations be considered capable of making religious claims? Or should none?

In a post on Bleeding Heart Libertarians, Jacob T. Levy is skeptical of the U.S. Supreme Court’s reasoning. He thinks that whatever rights corporations have, they have them as distinct legal persons, rather than as extensions of their owners:

the corporation qua property owner has, for example, 4th Amendment rights against its property being unreasonably warrantlessly searched, and 5th Amendment rights against it being taken for public use without compensation, or against being deprived of it without due process of law. …

To say that “corporations are made of people” is to make “a different point, nearly the opposite point, from saying that they are themselves persons.” The reason the Court makes this point is that, unlike for other rights, it doesn’t make sense to say that corporations have religious rights. These rights only make sense if they belong to individuals, the corporations’ owners. But that makes the claim of corporate rights contrived. In short,

[c]orporations are persons, or corporations are made out of people– the two thoughts lead to very different conclusions, and I think protecting the former requires rejecting this kind of easy recourse to the latter.

By contrast, over at the Volokh Conspiracy, Ilya Somin endorses the Court’s logic. For him, “[t]he fundamental point here is that people organized as corporations are people too.” Indeed, in his view, this logic extends to all corporations, and not just closely-held ones, as does the protection of other rights.

I too think that the distinction between closely-held and publicly traded corporations should not matter for defining the rights which corporations should be able to claim. As I suggested here, in response to a paper by Burt Neuborne arguing that closely-held but  not publicly traded corporations should have the right to engage in political speech, it would be strange if a corporation lost some rights upon filing an IPO and could then reacquire these rights upon being bought out by a private equity firm. “Rights, we generally think, are universal, if they exist at all.”

And, at least if we insist on speaking in terms of rights rather than limits on government action, I agree with prof. Somin that corporate rights are primarily the rights of individuals. I’m not sure I fully understand prof. Levy’s objection to this approach, but it seems to me that while  we are used to speaking of the freedom of expression of the New York Times, there really is, as I suggested in the post just linked to, “something puzzling about a purely legal entity, ‘a nexus of contracts,’ with no mind or personality of its own, having ideas to share.” The puzzle, indeed, is no less than in the case of a purely legal entity which, instead of producing newspapers, runs a church or, say, a religiously-compliant slaughterhouse. In all these cases, corporations themselves have no real moral claims; they have no personality of their own, no dignity, no liberty that we should care about. Corporate rights protect the rights their shareholders, and probably other stakeholders too (I have suggested otherwise in the past, but I am now inclined to think that I was wrong to exclude other stakeholders here).

These rights matters because in going to the marketplace ― whether as businessperson or as an employee ― one does not leave one’s personality behind. One does not surrender one’s identity or one’s beliefs. We recognize this, for example, when we insist that the law protect employees from having to do so, through anti-discrimination provisions. It is only right that people who go into business rather than become employees also be allowed to continue worshipping gods other than Mammon.

Not Established

I wrote in my last post about a brief recently submitted to the U.S. Supreme Court arguing that an act of Congress which exempts religious believers from the application of any law that interferes with their religious beliefs and practices unless the law is the least restrictive means to realize a compelling government objective is unconstitutional. In that post I criticized the brief’s claim that this statute, the Religious Freedom Restoration Act (RFRA), usurped the judiciary’s prerogative to define the scope of individual rights. In this one, I will address what I think is the most serious of its claims: that the RFRA’s wholesale religious exemption unduly favours religious belief (and thus amounts, in U.S. constitutional terms, to an “establishment” of religion prohibited by the First Amendment).

The brief argues that while it is permissible for religious individuals or groups to benefit from government assistance that is available on equal terms to non-religious ones, the government cannot favour religious believers exclusively. The RFRA violates this prohibition, because it “carves up every neutral, generally applicable federal law … for the benefit solely of religious actors” (27). The RFRA elevates the believers who benefit from the exemptions it mandates above other citizens: “Imposing this gauntlet on every federal law forces the needs of other believers and nonbelievers to be subservient to the believers invoking RFRA” (29). In cases where the legal requirement which the believers challenge is a financial one, granting them an exemption will amount to a subsidy for (a given form of) religious belief. And because of the RFRA’s breadth, all kinds of religious exemptions will be sought, and obtained, and people whom federal law attempts to protect will suffer as a result. In short, the “RFRA lets religious citizens rewrite any federal law they don’t like, to their benefit,” while others have not only to exert effort and expend money to pass that law, but then also to defend it in court.

The argument that religious exemptions are a form of preference for religious believers which is incompatible with a liberal state’s duty of neutrality is a common and, at first glance, a powerful one. However, it is not persuasive, once the nature and effect of exemptions are understood. Exemptions serve not to confer a special benefit, but to remove a special burden, and thus further  rather than undermine state neutrality.

The reason for religious exemptions is that rules of general application can have a disproportionate impact, impose a heavier burden, on people whose religious beliefs either require them to do something these rules prohibit or prohibit them from doing something the rules require. So, for example, a rule that prohibits schoolchildren from having weapons at school conflicts with the Sikh children’s religious duty to wear a kirpan. A regulation that requires a person obtaining a driving licence to be photographed conflicts with the Hutterites’ belief that they must not have pictures of them taken. Of course, such laws impose duties on all those subject to them, regardless of their religion. But, while for most people, complying with these duties is often little more than an inconvenience (if that, as with the picture requirement for a driver’s licence), for some religious believers the burden imposed by the law is much greater. Such believers are required not merely to do something unpleasant, but to go against their conscience, to breach what they consider to be a duty of the highest importance. The fact that the rule that imposes this obligation on them is not intended to trample on their conscience is scant consolation to them.

For this reason, there is nothing untoward in making exemptions for religious believers and not for all citizens, although in my view some forms of conscientious but not religious belief are entitled to the same consideration. Citizens for whom compliance with a rule is, however unpleasant, not something contrary to their conscience are simply not in the same situation as religious believers and conscientious objectors.

As for the claim that religious exemptions are a form of assistance to the religious, it is not always true. To be sure, an exemption can be designed in a way that goes beyond merely removing the special burden a rule places on some religious believers, and thus becomes a form of support to these believers which is at odds with the requirement of state neutrality, but it need not be. This problem will seldom occur so long as the exemption is tied to the special burden it is intended to remove. Allowing a Sikh child to wear a kirpan to school does not benefit him in any meaningful way. It simply removes a special burden which the rule prohibiting weapons places on him.

This is not to say that religious exemptions should always be granted. Some exemptions would burden other people in ways which are utterly unacceptable. (The traditional example in these debates is a hypothetical exemption from homicide laws to a religion that demands human sacrifice.) But many exemptions will result not in the violation of the rights of an identifiable person (such as the human sacrifice victim) but at most in marginal, and perhaps even insignificant, increases of a burden distributed among a vast number of people. For example, allowing Hutterites to use picture-less drivers licenses might marginally increase the risk of identity theft (as Alberta claimed when it abolished this exemption ― but the additional risk suffered by any one citizen as a result might be vanishingly small (though not small enough, in the view of the Supreme Court of Canada, to require the exemption). In such cases, an exemption does not make “the needs of other believers and nonbelievers to be subservient to” those of the believers asking for an exemption ― it does not meaningfully affect these “needs” at all.

Religious exemptions neither always confer tangible benefits on those to whom they are granted, nor always burden those to whom they are not. Thus, a commitment to avoiding imposing disproportionate burdens on religious believers and conscientious objectors by granting them, where possible, exemptions from laws of general application favours neither the particular religions whose adherents benefit from exemptions over the others nor religion generally. Such a commitment is not free from difficulties, both conceptual and practical, which I discuss at considerable length in a recent article. But it is not an “establishment of religion.”

Room for Disagreement

The issue of the respective roles of courts and legislatures in defending ― and defining ― individual rights and liberties is a controversial one. Some, like Jeremy Waldron, argue that protecting rights is the legislatures’ job, at least in the last resort. Others, like Dahlia Lithwick and Sonja West,  apparently believe that rights are the exclusive preserve of courts, and should never be put to a democratic vote. A brief recently been filed in the Supreme Court of the United States makes something like the latter argument, and so is a useful occasion to revisit it (I have previously criticized it here).

The brief, filed by what Lyle Denniston describes as “a loose coalition of child welfare organizations, survivors of clergy child sexual abuse, and non-believers” argues that a statute enacted by the U.S. Congress to exempt religious believers from the application of laws which impose “substantial burdens” on their exercise of their religious beliefs (by requiring to do something their faith prohibits or preventing them from doing something it commands) unless the law is the least restrictive means to realize a “compelling” objective is unconstitutional. The statute, called the Religious Freedom Restoration Act (RFRA) was enacted to cancel the effect of the U.S. Supreme Court’s decision in a case known as Employment Division v. Smith, 494 U.S. 872 (1990), which held that the U.S. Constitution did not require such religious exemptions from laws of general application not specifically intended to burden religious practice. The brief argues that the enactment of the RFRA is, among other horrible things, a usurpation of the Supreme Court’s role in defining constitutional rights.

The brief claims that in enacting the RFRA, “Congress shoved the Court aside” (10), and makes much of the fact that

[t]he hearings before Congress were almost exclusively a litany of criticism against this Court and the Smith decision, accompanied by demands that Congress reverse this Court’s reading of the First Amendment. (13)

As the brief sees it, the RFRA’s grant of an entitlement to religious exemptions was “in defiance of the Court’s opinion” (14). Furthermore, the brief claims that the RFRA

is a formula that would make it possible for Congress to meddle with any constitutional doctrine and decision, and move the Court to the sidelines as political winds shift constitutional standards by simple majority votes. (18)

The implementation of constitutional rights is the Supreme Court’s job, and Congress is both out of its depth and outside its proper remit in attempting to do it.

Unlike for Ms. Lithwick and Ms. West, the brief’s underlying concern is that the legislature has interpreted rights (in this case, religious freedom) too broadly, not too narrowly. But the conclusion of both arguments is the same ― the courts, and only the courts, are the proper forum for defining the scope of individual rights. Legislatures cannot make rights either narrower or broader then what (in the courts’ view) the constitution requires. While I do not quite know what to make of its merits at a matter of American constitutional law, as a matter of principle this claim is nonsensical and dangerous.

Consider, first, its logical implications. If, say, the U.S. Supreme Court were to hold that the restriction of marriage to opposite-sex couples is not unconstitutional, it would be wrong, on the brief’s theory, for American legislatures to legalize it. If the constitutional guarantee of equality does not include same-sex marriage, the legislatures have no business enacting “marriage equality.” Similarly, on the brief’s theory, it was presumably wrong for States to reject segregation after the U.S. Supreme Court held in Plessy v. Ferguson, 163 U.S. 537, that “separate but equal” public facilities were not unconstitutional. If Congress granting religious believers greater rights than the Supreme Court is “defiance,” then surely so is the rejection of the “separate but equal” principle.

Such results would not only be morally distressing, but also absurd. Saying that something ― religious exemptions, same-sex marriage, integrated schools ― is not required by the Constitution is not equivalent to saying that it is prohibited. A constitution is a minimum standard, a baseline below which the state cannot go in affecting individual rights. It does not conclusively define rights, but merely says that rights are no narrower than a certain core which it protects. In polities with judicial review of legislation, the courts are charged with defining this protected core of rights by interpreting and applying the constitution. But judicial review is not meant to deprive legislatures of any role in implementing the citizens’ rights. They can go further and/or faster than courts ― and often do, whether in abolishing the death penalty, decriminalizing homosexuality, enacting protections for journalists’ sources, etc. When legislatures do this, they do not take over the judiciary’s “power to interpret the constitution.” They do not interpret the constitution at all. They simply, and properly, go above and beyond the constitution’s minimum requirements. This does not subject individual rights to a (constitutionally) unacceptable majoritarianism. Of course, ordinary legislation expanding rights beyond the constitutional requirement can, at least in theory, be repealed by simple majority vote. But a repeal would not affect the constitutional protection. It would do nothing worse than return the understanding of the affected right to that of the judiciary.

The opponents of judicial review argue that the scope of individual rights is subject to good faith, reasonable disagreement, which ought to be settled by the political process. A polity’s decision to protect individual rights by means of judicial review must be based on a belief that the core scope of some rights is not subject to such disagreement; that a decent society must agree that these rights mean at least that (that which entrenched in a constitutional bill of rights), whatever else they might also mean. This belief does not imply that the scope of these rights is not subject to reasonable disagreement at all. Freedom of speech, freedom of religion, equality, and other rights are difficult concepts. There is nothing wrong with saying that, once the protection of a core of these rights is constitutionally guaranteed, there is room for disagreement about their full scope ― and for laws that extend that scope beyond the core protected by the judiciary.