#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. 

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.

Personality Issues

First of all, my apologies for the extended silence. At first, it was a lack of interesting topics; but then the worst enemy of blogging, the loss of habit of frequent writing. I will do my best to get back into it now.

I start off by a comment on an interesting recent article by my NYU professor, former National Legal Director of the ACLU, and sometime movie start, Burt Neuborne. In “Of ‘Singles’ without Baseball: Corporations as Frozen Relational Moments,” prof. Neuborne grapples with an issue that has aroused a great of controversy of late: the legal personality and constitutional rights of corporations. (I have a couple of posts on this topic here and here.)

In a nutshell, prof. Neuborne argues that corporate legal personality is a legal fiction, which is very useful for protecting and enforcing the rights of the corporation’s “participants”―mostly, but not only, shareholders. Accordingly, this notional personality can be endowed with constitutional rights insofar as doing so protects the rights of the corporation’s participants. For example, courts rightly recognize that corporations have a right to property, because this recognition protects the property rights of its shareholders; they rightly recognize the corporations’ freedom of speech when that freedom is exercised to communicate about the corporations’ business, because this protects the shareholders’ ability to pursue their legitimate commercial interests; and so on. On the other hand, courts have traditionally refused, and ought to refuse, to recognize corporate rights when doing so would favour some “participants” in a corporation at the expense of others. Thus, conferring on a corporation constitutional protection against self-incrimination would favour managers by allowing them to cover up their misdeeds, to the shareholders’ detriment. And, crucially, allowing a multi-shareholder corporation to spend money to intervene in electoral politics:

Unlike the garden-variety decisions about how to manage the corporate business …  no participant in the corporate enterprise believes that by joining a corporate community he or she has delegated the exercise of his or her First Amendment electoral rights to corporate management. Given the inevitable conflicts of interest within a large multi-shareholder corporate community about which candidate to support in a contested election, it appears inconsistent with [the usual legal principles] to vest a corporate management with a centralized power to use other peoples’ money for political ends.

Thus broad readings of the U.S. Supreme Court’s Citizens United decision, which, controversially, declared unconstitutional restrictions on the ability of corporations to spend money to support or oppose candidates in elections, are misguided. 

This is an elegant argument, much more fine-grained and plausible, and thus interesting, than the categorical rejection of corporate legal personality and constitutional rights which have become popular in some quarters on the left in reaction to Citizens United. But I find it problematic in its own way. For one thing, I wonder whether it makes sense to make the answer to the question whether a corporation has a certain free speech right dependent on its internal structure. For another, I think that prof. Neuborne mischaracterizes the relationship between the rights of the “participants” in a corporation and the corporation itself, at least in the case of electoral speech. Most broadly, I think there is reason to question his rejection of the possibility of meaningfully distinct corporate personality and rights.

First, prof. Neuborne’s theory makes the existence of corporate rights dependent on their potential for advancing or hindering the interests of corporate “participants”―rights should be recognize when they advance the participants’ interests when they are unified, and rejected when the participants’ interests conflict and corporate rights would favour those of some participants over others. This means, as prof. Neuborne acknowledges, that corporations owned by a single shareholder, or presumably by a small group of like-minded shareholders, should have more rights than those owned by large numbers of shareholders who might have diverse opinions and interests. A public corporation whose shares are widely held would not have the right to spend on supporting candidates for an election―but the same corporation, if it bought out and taken private, would presumably have that right in the next election, as there is no longer a possibility for conflict among its shareholders. This strikes me as implausible. Rights, we generally think, are universal, if they exist at all.

Second, I don’t think that recognizing corporate speech rights, including the right to intervene in electoral politics, amounts to “delegat[ing] the exercise” of these rights from the shareholders and other corporate “participants” to management. Shareholders remain free to exercise these rights on their own, independently from and contrary to the corporation. One doesn’t have a limited supply of free speech rights, some of which one hands over to corporate management, so one’s rights are not actually impeded by corporate speech, even if one disagrees with it. Of course, one might be upset about one’s investment serving to promote ideas one disagrees with, but one might be similarly upset about business decisions a corporation of which one owns shares makes. Prof. Neuborne is right that there is a certain price to pay for extricating oneself from a relationship with a corporation―but that is the risk one takes by buying shares. 

Finally, I am not sure that prof. Neuborne is right to argue that corporate personality and rights can exist only insofar as they promote the easily ascertainable interests and uphold the rights of corporate “participants.” I accept that a corporation only serves to advance the interests of its shareholders (note that prof. Neuborne speaks of “participants,” not only shareholders―it is a disagreement I do not want to get into here). But we treat other artificial entities―notably governments of all sorts―as having an existence and rights of their own, even though they also exist in order to serve the interests and/or protect the rights of individuals. I’m not persuaded that the position of corporations is very different.

Rights for Us, or Limits on Them?

I blogged recently about whether, in Canadian constitutional law, corporations can challenge laws as violations of the freedom of religion. The answer, I said, is sometimes yes, and sometimes maybe, depending on the nature of the statute at issue, and maybe on other things too. But does that make sense in theory? A corporation itself has no religion, though its owners might. How can it assert such an intrinsically personal right?

The same question is often asked (perhaps more in the US than in Canada) about free speech. Occupy Wall Street (remember them?) claimed that one of the many things that were incorrigibly wrong with the universe is the recognition of the free speech rights of corporations. Again, there seems to be something puzzling about a purely legal entity, “a nexus of contracts,” with no mind or personality of its own, having ideas to share. And the same thing might be said about other rights too. Due process rights are often justified by reference to human dignity, but a corporation doesn’t have dignity; property rights are sometimes justified by the Lockean “sweat of the brow” theory, but a corporation has neither brow nor sweat glands.

I want to suggest a way of getting out of this metaphysical conundrum. My idea is very tentative, and maybe not as helpful (or as interesting) as I think it might be, but I’ll share it anyway. Perhaps we should simply stop thinking in terms of rights. Rather than rights, what we should be interested in are limits on government action. Instead of saying that a person has a right to X, we should be saying that the government cannot interfere with X. This eliminates the awkwardness of dealing with the question whether a person who claims the right to X is the sort of person who can in fact have or enjoy X. Of course, the two ways of saying it are really two sides of the same coin, so there would still be individuals bringing claims that the government disregarded the constitutional prohibition, much like they now bring claims that the government infringed their rights. But there seems to be less difficulty in accepting that a corporation can point to a government disregarding a prohibition than that it can claim a right.

This way of thinking is already familiar in Canadian constitutional law. As I noted in the post linked to above, in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, Justice Dickson (as he then was) justified his conclusion that a corporation was entitled to challenge a law pursuant to which it was accused as infringing freedom of religion because “[i]t is the nature of the law, not the status of the accused, that is in issue.” And of course that is how we think of federalism disputes. We do not say that, say, legislation creating a federal securities regulator would infringe somebody’s right not to have Parliament regulate securities, and then ask ourselves who might actually be able to claim this right. We say that such legislation is ultra vires Parliament―that it is beyond its powers. What I am suggesting is that we think and speak in the same manner of disputes about what we usually refer to as rights.

Against that is the text of the Canadian Charter of Rights and Freedoms itself. Not only is it actually called a Charter of Rights, but most of its substantive provisions are specifically termed as rights, variously said to belong to “everyone” (ss. 2, 7-10, 12, 17), “every citizen of Canada” (ss. 3, 6(1)), “every citizen of Canada and every person who has the status of a permanent resident of Canada” (s. 6(2)), “every person charged with an offence” (s. 11), “every witness” (s. 13), “a party or witness” (s. 14), “every individual” (s. 15(1)), or “every member of the public in Canada” (s. 20). (By contrast, some provisions of the US Bill of Rights are formulated as prohibitions addressed to the government rather than as individual rights, including the First Amendment: “Congress shall make no law…”). But courts, so far as I know, never made much of these introductory clauses (which is as well―I fail to see what is to be gained by trying to figure out whether “everyone” is different from, say, “every member of the public).

In any case, my point is not so much about litigation as about clear thinking. As a matter of law, there is no doubt that corporations can in fact assert various rights under the Charter. Some of the foundational Charter cases involved corporations―not only Big M, but also Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 (about freedom of expression), and Hunter v. Southam Inc., [1984] 2 S.C.R. 145 (about protection against unreasonable searches). But if we want to understand why this is not an aberration, thinking about limits on government rather than rights for individuals might help.

Freedom of Corporate Religion?

A number of cases now working their way through the US court system and attracting a great deal of commentary, some of which Josh Blackman summarizes and/or links to in this post, ask an interesting question: can a corporation challenge a requirement that it provide its employees with health insurance covering, among a great many other things, contraception, on the basis that this infringes its (owners’) religious freedom (the so-called “contraception mandate”)? A corporation, of course, does not worship, or believe anything. So can it be entitled to exercise a religious right? I am not qualified to answer this question as a matter of US law, but I thought I’d say a few words about how it might play out in Canada.

Could a Canadian corporation challenge a law on the basis that it infringed religious freedom? The answer seems to be sometimes yes, and sometimes maybe. The foundational case on freedom of religion, and indeed one of very the first Charter cases, was  R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. As the style of clause makes clear, the respondent was a corporation. It was accused of operating a store on a Sunday, contrary to the Lord’s Day Act, R.S.C. 1970, c. L‑13. It claimed that the statute was contrary to the Charter’s guarantee of freedom of religion because it enforced a Christian religious observance. And sure enough, the government said that that didn’t matter, because as a corporation, Big M could not possibly have a right to freedom of religion. Justice Dickson (as he then was) rejected this argument:

Any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid. Big M is urging that the law under which it has been charged is inconsistent with s. 2(a) of the Charter and by reason of s. 52 of the Constitution Act, 1982, it is of no force or effect.

The argument that the respondent, by reason of being a corporation, is incapable of holding religious belief and therefore incapable of claiming rights under s. 2(a) of the Charter, confuses the nature of this appeal. A law which itself infringes religious freedom is, by that reason alone, inconsistent with s. 2(a) of the Charter and it matters not whether the accused is a Christian, Jew, Muslim, Hindu, Buddhist, atheist, agnostic or whether an individual or a corporation. It is the nature of the law, not the status of the accused, that is in issue. (Emphasis mine)

But there is a very important qualification:

 As the respondent submits, if the legislation under review had a secular purpose and the accused was claiming that it interfered with his religious freedom, the status of the accused and the nature of his belief might be relevant: it is one thing to claim that the legislation is itself unconstitutional, it is quite another to claim a “constitutional exemption” from otherwise valid legislation, which offends one’s religious tenets.

This possible exception―possible, because Justice Dickson is not deciding that the status of the claimant is relevant to, much less dispositive of, exemption claims―might actually be much more important than the rule in Big M.  That case was probably unique; Canada is not about to re-enact the Lord’s Day Act, or any other law enforcing or prohibiting religious observances. Claims for religious exemptions, by contrast, have arisen in the last few years, and will continue to arise.

One such case was Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, in which Hutterites tried to obtain an exemption from the requirement that their drivers’ licences bear their pictures, which contradicted their interpretation of the Second Commandment. Unfortunately, it is not entirely clear what sort of entity the colony is, legally speaking―is it a corporation or something else? I am guessing though that it is a corporation of some sort, since it sued in its own name. Indeed, it is remarkable enough that no individual Hutterite was a party in the case, considering that it is individuals who applied for drivers’ licences and were required to submit to picture-taking contrary to their faith. Still, that was not at all an issue in the case. Perhaps this is simply because a violation individuals’ religious freedom was so obvious (though the majority held that it was justified under s. 1 of the Charter). Perhaps the Colony had a sort of implicit public interest standing, if such a thing can exist. Perhaps the key is that even if the Colony is, legally, a corporation, it is an obviously religious one, in a way that most ordinary commercial corporations are not. The most we can say with confidence is that this case does not confirm Justice Dickson’s caveat about corporations seeking religious exemptions; but nor does it conclusively put that caveat to rest.

So much for the law, as best I understand it. I will try to have some more theoretical comments on the issue in the coming days.

Freedom and Institutions

The who study the question of religious freedom often wonder why it should benefit and protect not only individual believers, but also religious institutions. Application of religious freedom to institutions such as the Catholic Church―institutions which, needless to say, are not often themselves models of internal liberalism, equality, or democracy―generates a good deal of criticism. Among other things, the critics point out that religious institutions seem unique in benefiting from a right which, like other rights, normally attaches to individuals. Indeed, many people―and particularly the non-religious, the agnostics and the atheists―do not exercise their beliefs through institutions. They only claim religious freedom (which, it is generally agreed, includes the freedom not to hold any religious belief) for themselves, not for any institutions. Why should believers be different?

But this story from the BBC suggests that they might not be different. It tells of an “atheist church” gathering in London, singing, sermons, and all. As the BBC reports,

The audience – overwhelmingly young, white and middle class – appear excited to be part of something new and speak of the void they felt on a Sunday morning when they decided to abandon their Christian faith.

Now I, for one, find it somewhat perplexing. As Leo Tolstoy supposedly said when invited to join a temperance society, “there’s no need to get together in order not to drink. If you get together, you might as well raise a glass to the occasion.” But never mind. Many people strongly prefer to live their beliefs through institutions―whatever these beliefs are, even if they are non-beliefs. Institutions are an inextricable part of the belief. Attack the institution, and you risk destroying the belief. Claims that we can respect religious freedom without making room for religious institutions―or, it would seem, that we could respect the freedom of non-believers without making room for institutions of irreligion, whatever shape they might take in the years to come―are at best misguided, and hypocritical at worst.

Besides, it is not really true that religious belief is unique among rights in being bound up with institutions. Just as freedom of religion has its churches, freedom of expression has its press (sometimes expressly acknowledged in constitutional texts, as in the First Amendment of the U.S. constitution), and, as Yale’s Dean Robert Post argues, its universities (as I explain here). So too the individual right to an impartial trial is connected with institutional protections for courts. And there are probably other examples too. Once you start thinking about it, religious freedom is neither as exceptional nor as exceptionable as some would have us think.

But institutions, however indispensable for freedom, can also stifle it. Universities, according to Dean Post, must be free to penalize professors and students who do not play by the generally accepted rules of the academic game; churches can impose penance and excommunicate their heretics. This is fine―this is part of these institutions’ freedom, which in turn is an inextricable part of how individuals exercise their own freedom―so long as there are alternatives. So long as an excommunicated heretic is free to found his own church, and to criticize the one that rejected him; so long as the mad scientist is free to pursue and publish his work outside the official ivory tower, there is no justification for interfering with the institutions which, internally, rely on authority more than on freedom. But there is a standing danger of such institutions growing so powerful as to capture the state and rely on its coercive machinery to forbid the expression of views disagreeable to them. That danger―the danger of the marketplace of ideas being ruled by state-backed monopolies―is what we must guard against.

The Wrongs of Rights?

The New York Review of Books has an interesting piece by David Cole on Michael J. Klarman’s From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage. The thesis of the book (which I haven’t read, so I’m relying on prof. Cole’s summary) is that litigation in pursuit of the recognition of marriage equality has done more harm than good, if not to that specific cause then to gay rights or civil liberties more generally. Indeed, prof. Klarman claims that that’s what usually happens when courts oppose public opinion in defence of the rights of unpopular minorities. Unpopular judicial decisions provoke backlash, and the price of a sometimes inconclusive victory in the short term is decades of hostile legislation. Prof. Cole argues that this isn’t necessarily so; what prof. Klarman characterizes as backlash would have happened regardless of the courts’ interventions, but without those things would have been even worse; and in the case of same-sex marriage and gay rights more generally, courts have done a lot of good, not least by forcing people to confront issues which would otherwise have remained marginal at best. This is all very interesting, though I don’t know enough to tell who is right and to what extent.

What I would like to comment on is prof. Cole’s more general argument about judicial review and its role in advancing civil liberties. “The very reason,” he writes

we protect certain rights through constitutions that resist revision by majorities is that some rights by their nature are unlikely to be realized through the ordinary political process—particularly the rights of minority groups, unpopular dissidents, or the criminally accused. If we could rely on the ordinary political process to protect such rights, there would be no need for protecting them through judicial enforcement of constitutional principles. But history shows that we cannot.

Precisely because constitutions are needed to safeguard unpopular rights, protection of those rights is likely to spark a popular reaction.

Constitutional protections can mean, as in the case of marriage equality, that “the legal argument [is] very strong” despite the hostility of public opinion. And of course the courts’ job is to look to the law, not to opinion polls. So if their decisions provoke backlash, “we might well take that as evidence that they are actually performing the function that we expect from them.”

I think this is much too optimistic, or maybe too simplistic. Courts aren’t independent of public opinion in the way prof. Cole seems to suggest. Courts are certainly not supposed to look at opinion polls, and I’m not suggesting that they do, though some judges at least are clever politicians in their own right. But clever politicians or not, and however good lawyers, their legal ideas and arguments don’t come out of thin air. Their ideas about civil rights are only as advanced―and sometimes much, much less advanced―than those of their time.

The famous case of Griswold v. Connecticut, 381 U.S. 479 (1965), which struck down a state law prohibiting the use or provision of contraceptives or information about contraceptives, even to married couples, is an apt illustration. Eventually, it was read as standing for a general principle of sexual privacy and relied on in opinions striking down prohibitions on abortion and gay sex. If the Supreme Court of the United States rules in favour of marriage equality―this year or at some point in the future―that will be, and will be said to be, the result of a process that started in Griswold. Yet that opinion did not necessarily promise so very much. The majority went to great pains to argue that its holding applied to married couples, no one else. Justice Goldberg’s concurrence refers to “statutes, the constitutionality of which is beyond doubt, which prohibit adultery and fornication” and endorses statutes criminalizing homosexuality (498). Now admittedly I cannot tell for sure, but I suspect that the idea that such statutes would soon enough be considered, beyond doubt, unconstitutional, would have been surprising to the Griswold court, perhaps astonishing and distressing.

At any given time courts can only do so much for civil liberties. The beauty of judicial review isn’t that it can accelerate progress in this area by leaps and bounds over popular opinion. It might, however, do some useful things. One is to bypass legislatures which aren’t even prepared, for whatever reason, to go as far as the opinion of their constituents. Another, as prof. Cole points out, is to bring some issues to the public’s attention. And a third, which Griswold’s progeny (contraceptives, I suppose, don’t always work as intended!) demonstrates, is that judicial decisions, probably to a greater extent than legislation, have to stand and can be interpreted as standing for certain principles, which can then be extended beyond the expectations of their authors, and used to advance rights and liberties further―when judges, and perhaps the public, can accept the next step.

Facing Justice

In a decision delivered this morning, R. v. N.S., 2012 SCC 72, the Supreme Court has ruled that the rights of a witness who, for sincere religious reasons, wishes to testify with her face covered and those of an accused against whom she testifies must be balanced on a case-by-case basis, eschewing a bright-line rule, though suggesting that in doubt the accused’s right to a fair trial prevails and militates in favour of an order that the witness remove the face covering. (If you want a less convoluted version of this summary, look at media titles: most, including the National Post, the Toronto Star and all the French-language media―Radio-Canada, Le Devoir, La Presse,  and Le Journal de Montréal―go for something like “Niqab allowed in some cases,” but the CBC and the Globe & Mail go for variations on “Judge can order niqab to be removed.” I wanted to avoid this glass half-empty or half-full problem.)

The appellant, N.S., is due to testify at the trial of two relatives whom she accuses of raping her. She wants to do it while wearing a niqab. The accused say she ought to be ordered to remove it while testifying, because not seeing her face prevents the trier of fact (judge or jury members) from making accurate credibility findings and their lawyers from cross-examining her effectively, thus jeopardizing the fairness of their trial. There are thus fundamental rights involved on both sides, freedom of religion and the right to a fair trial. What gives?

First of all, says Chief Justice McLachlin for the majority, it is important to check whether the witness’s insistence on covering her face is motivated by a sincere belief. The first instance judge in this case did not conduct that inquiry properly, so the rest of the reasons is hypothetical―it only presumes that this first requirement has been satisfied.

The second question to be answered is whether allowing the witness to wear a niqab actually compromises trial fairness in the circumstances. Where the evidence the witness will give is uncontested, that is not the case. When credibility is at issue, however, fairness will be compromised. The Chief Justice rejects the claim of the appellant and some interveners that there is nothing much to be learned from seeing a witness’s face. The common law has always proceeded on the contrary assumption, she points out, and while such assumptions are known to have sometimes resulted from unfounded misconceptions and even myths, they should not be discarded without any evidence that such is the case.

If it finds that both a sincere religious belief and trial fairness are implicated in the circumstances of a case, the court must attempt to reconcile them by accommodating both. However, it may well be that there is no accommodation which upholds both rights to be found.

If so, the rights at stake must be balanced to determine which is to prevail, again, in the circumstances of the case. “The question,” says the Chief Justice, “is whether the salutary effects of requiring the witness to remove the niqab, including the effects on trial fairness, outweigh the deleterious effects of doing so, including the effects on freedom of religion” (par. 34). The Chief Justice sets out a number of factors for courts to consider. On the side of freedom of religion, they include the degree of impairment which a particular witness’s freedom would suffer if she is ordered to remove the niqab, but also the risk that witnesses will simply refuse to come forward if they cannot comply with their religious obligations and thus crimes―very serious crimes like rape in this case―will go unreported or unpunished. On the side of trial fairness, there is the extent to which credibility is central to the case, the stage of the proceedings, and whether the trier of fact is a judge or a jury. The list, however, is rather tentative, and non-exhaustive.

Finally, the Chief Justice turns to the proposed alternatives to this uncertain balancing―clear rules either allowing or prohibiting the niqab at all times. Always allowing it, she says, undermines trial fairness and increases the risk of wrongful convictions. Always prohibiting it, on the other hand, in the name of making courts religiously neutral spaces, “is inconsistent with Canadian jurisprudence, courtroom practice, and our tradition of requiring state institutions and actors to accommodate sincerely held religious beliefs insofar as possible” (par. 60). It infringes religious freedom even when doing so does nothing for trial fairness. And, the Chief Justice points out, it is simply not true that we evacuate religion from the courtroom―witnesses have the option to swear on the Bible, the Koran, etc. The state must be neutral towards religion, but it should not hinder it gratuitously.

The two other opinions urge the adoption of the clear rules that the majority rejects.

While concurring in the disposition of the appeal, Justice Lebel, writing for himself and Justice Rothstein, argues that trial fairness and the openness of courts are too fundamental ever to be compromised. Evidence that might be unchallenged at one stage of the trial could be called in question at the next. Anyway, while special rules departing from ordinary procedures can be put in place in order to facilitate communication between the various actors of a trial, a niqab only impedes it, “on the basis of the assertion of a religious belief in circumstances in which the sincerity and strength of the belief are difficult to assess or even to question” (par. 77).

Justice Abella, dissenting, takes the contrary position. In her view, a witness should always be allowed to wear a niqab, except in cases where identity itself is at issue. Otherwise, while “seeing more of a witness’ facial expressions is better than seeing less” (par. 82), seeing less does not prevent the trier of fact from assessing credibility. Anyway, the law already makes any number of exceptions that allow people to testify in ways that prevent their demeanour from being visible to and assessed by the trier of fact. That a witness must testify with her face open is only a general expectation, not a general rule, while the risk of being required to breach one’s religious duty will deter women from acting as witnesses, and is thus a sign of exclusion of religious minorities.

The contrast of style between the majority, on the one hand, and the concurrence and the dissent is as strong as the substantive difference. The majority’s opinion is rather dry and legalistic. The concurrence and the dissent are thick with talk of values and quite impassioned.

For my part, I think that the majority has it right. There really are two very serious rights at issue here. Justice Lebel’s snide comment about the possible insincerity of niqab-wearers and Justice Abella’s claim that since we already compromise fairness some of the time there is nothing wrong with compromising it some more do not persuade me. Case-by-case balancing―although the Chief Justice’s comments suggest that in practice the balance will be tipped towards trial fairness and thus ordering the witness to remove the niqab― might be frustrating, but I don’t think that there is a better way to resolve the clash of rights.

See You in Court!

This is the second part of my comments on the BC Supreme Court’s judgment striking down hearing fees the province imposed on litigants who wanted to go to trial, which I summarized here. Yesterday, I wrote about he separation of powers line of argument in Justice McEwan’s reasons. I turn now to the suggestion, which also runs through his judgment, that there is something like an individual right to go to court.

The Charter, of course, contains no such right. Well, at least not generally. Subs. 24(1) does provide, however, that “[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” Still, if that’s a right to go to court – that’s what it sounds like to me – it’s a narrow one. Most cases have nothing to do with the Charter. The dispute before Justice McEwan was about child custody, and before the question of the fees arose, the Charter was not at issue at all.

Justice McEwan makes two main arguments for why there is a right to go to court, and it is a general one. The first is that going to court is a form of democratic participation, protected by the democratic principle of the constitution. The second is that it is a feature of our constitutional order and a requirement of the Rule of Law. Continue reading “See You in Court!”

Rights and Disagreement

Charles Krauthammer has an interesting op-ed in the Washington Post discussing President Obama’s endorsement of same-sex marriage, and accusing him of taking an intellectually incoherent approach to this matter. Mr. Obama has said that marriage – including of the same-sex variety – is a right; he has also said that the issue of allowing same-sex marriage (or not) should be for each state to decide. Mr. Krauthammer charges that this is contradictory: rights are rights are rights, and if something is a right, then it’s a right everywhere, and not state by state. It is the same argument that Dahlia Lithwick and Sonja West made in an op-ed on Slate (which I criticized here on other grounds). Mr. Krauthammer’s colleague Ruth Marcus also raised this issue a few days ago. It seems like a compelling argument, but it is wrong.

It is fine to say, in the abstract, that if something is a right it is a right everywhere and is not negotiable. (Actually, that too is a very controversial position, but let’s assume it.) The problem, as Jeremy Waldron likes to remind us, is that we don’t have any agreed upon means of verifying, to the satisfaction of everyone, the claim that something is a right, the way we have agreed upon ways of verifying the veracity of a claim made by a scientific theory. Thus even assuming that there exists a truth of the matter regarding rights, we can never be sure that we are, at any given moment, in possession of the truth about a claim of right. We think, of course, that our opinions about rights are correct; but if we are honest with ourselves, we cannot trivialize the possibility that we are mistaken.

We must recognize, therefore, that disagreements about right are can be reasonable. And that means recognizing – a possibility for which Mr. Krauthammer does not allow –  that someone who does not share our views about a certain claim of rights is not, for that reason, a bigot. I suspect that, if we think of the international realm, we mostly share that view. We do not think that every country that does not share our views about rights is bigoted. We might think them wrong, but not immoral. And we do not think that we ought to impose our views on them. We recognize that these are matters over which good faith disagreement is possible, and it is not wrong for each polity to resolve this disagreement as it thinks best – because it just might that they, rather than us, will get at the right answer.

Mr. Obama’s position might simply the application of this line of thinking inside the United States. He thinks that same-sex marriage is a right. But he acknowledges the possibility of good-faith disagreement on the matter (after all he, supposedly, until recently had doubts ), and thinks that this disagreement is best resolved in each state separately. This is not contradictory or incoherent.

There might be one more problem with that position. Where rights are codified in an authoritative document, like the U.S. Constitution, it seems strange to accept that it might mean different things to different people. But we know it does; people disagree about what the Constitution means just like they disagree about the underlying issues of rights. Unless one accepts the Dworkinian “one right answer” view, it need not be particularly troubling that the same document is interpreted differently by different people.

For once, left, right, and centre are united at criticizing Mr. Obama. And the irony is that this criticism is quite unfair.