Friday, May 25, 2018

Finding (or Losing) One’s Religion

Finding (or Losing) One’s Religion at Work:
What Should Our Clients Do (or Not Do)?
Michael W. Fox
Of the five original protected classes under Title VII, religion and color have always been the smallest in terms of number of claims filed. Still, compared to 1997, the number of charges of religious discrimination filed with the EEOC in FY 2015 has doubled both in absolute numbers and as a percentage of all charges filed.1
Linus had it right in 1961 when he said, “There are three things I have learned never to discuss with people ... religion, politics, and the Great Pumpkin.” Certainly raising religion in the workplace can and frequently leads to conflict.
As with most areas of workplace conflict there are areas where the law of religious discrimination is well developed but other areas where at this point the impact is mostly one of conjecture.
I. WHAT IS A SINCERELY HELD RELIGIOUS BELIEF OR PRACTICE?
A. Courts do not relish making religious decisions.
The logical starting point in the examination of any issue of potential religious discrimination is: does it involve religion. Although basic, it also is an area where courts have shown significant hesitancy in addressing the issue.
More than a decade ago, an employee challenged an employer’s policy prohibiting her from wearing her eyebrow piercing, claiming it was required by her religious beliefs as a member of the Church of Body Modification (CBM). Cloutier v. Costco, 390 F. 3d 126 (1st Cir. 2004). According to the Court's opinion:
The CBM was established in 1999 and counts approximately 1000 members who participate in such practices as piercing, tattooing, branding, cutting, and body manipulation. Among the goals espoused in the CBM's mission statement are for its members to "grow as individuals through body modification and its teachings," to "promote growth in mind, body and spirit," and to be "confident role models in learning, teaching, and displaying body modification."
The Court also found that the CBM's website was its primary mode of attracting adherents. Included on the website is an application to become a minister of the CBM. When Cloutier was terminated for refusing to remove her eyebrow piercing while working, she filed a charge of religious discrimination with the EEOC which found her belief in the CBM creed to be "religiously based as defined by the EEOC."
Given that background one might think the central question to be addressed by the Court was the first element of a prima facie case of religious discrimination, did a bona fide religious practice conflict with an employment requirement? However, that question was decided by neither the district nor the appeals court. In the latter's words:
Determining whether a belief is religious is "more often than not a difficult and delicate task," one to which the courts are ill-suited. Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 714 (1981). Fortunately, as the district court noted, there is no need for us to delve into this thorny question in the present case. Even assuming, arguendo, that Cloutier established her prima facie case, the facts here do not support a finding of impermissible religious discrimination.
Cloutier's only accepted accommodation was a complete exemption from Costco's ban on facial jewelry. Why would that be an undue hardship? The Court's answer:
Granting such an exemption would be an undue hardship because it would adversely affect the employer's public image. Costco has made a determination that facial piercings, aside from earrings, detract from the "neat, clean and professional image" that it aims to cultivate. Such a business determination is within its discretion. As another court has explained, "Even assuming that the defendants' justification for the grooming standards amounted to nothing more than an appeal to customer preference, . . . it is not the law that customer preference is an insufficient justification as a matter of law." Sambo's of Georgia, Inc., 530 F. Supp. at 91.
Although customer preference clearly no longer works as a defense for other types of discrimination, see Chaney v. Plainfield Healthcare Center, 612 F.3d 908 (7th Cir. 2010)2, the First Circuit was willing to use it here rather than take on the “thorny question” of whether the Church of Body Modification could qualify as a religion.
Courts have also stumbled when trying to decide whether or not individual acts qualify as religious actions. In a 2-1 decision, written by Judge Prado two years ago, the Fifth Circuit overturned summary judgment where the district court had found that an employee’s absence on a Sunday to attend a ground breaking ceremony for her church was not a religious practice.
Her employer, Fort Bend County had argued, and the district court found that: “being an avid and active member of church does not elevate every activity associated with that church into a legally protectable religious practice.”
But instead, the 5th Circuit’s majority opinion3 focused on what it called a historical reluctance of courts to delve too deeply into an individual's professed religious belief:
This court has cautioned that judicial inquiry into the sincerity of a person’s religious belief “must be handled with a light touch, or judicial shyness.” Tagore, 735 F.3d at 328 .... “[E]xamin[ing] religious convictions any more deeply would stray into the realm of religious inquiry, an area into which we are forbidden to tread.” Id. .... Indeed, “the sincerity of a plaintiff’s engagement in a particular religious practice is rarely challenged,” and “claims of sincere religious belief in a particular practice have been accepted on little more than the plaintiff’s credible assertions.” Id.
Judge Jerry Smith, politely, but vigorously disagreed with the Court's limited view:
In its well-written opinion, the majority errs in holding that our inquiry is limited to the sincerity of an employee’s alleged religious belief; we must also consider whether that belief is “religious” in nature or merely a personal preference or a secular social or economic philosophy.
It is clear that ifthere is a serious issue about whether or not the belief in question is religious, it is not necessarily going to be an easy call for the courts.
B. What is a religious belief?
Only “beliefs rooted in religion are protected by the Free Exercise Clause.”4 Whether an asserted belief or practice is “religious” can be straightforward or complicated. Courts are constitutionally precluded from adjudicating the validity of religious beliefs or practices, yet they are often called upon to determine whether an asserted practice or belief is “religious” at all. These inquiries are highly fact-specific. The most commonly used standard, announced by the United States Supreme Court, is as follows: “The test might be stated in these words: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition.”5
The EEOC Definition of Religious Beliefs. According to the EEOC, Title VII protects theistic beliefs as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” 29 C.F.R. § 1605.1 (2006). Just because a particular belief is strongly held does not mean that it is a protected religious belief. A religious belief usually concerns “ultimate ideas” about “life, purpose, and death.” Id. Likewise, whether an observance or practice is “religious” depends on the motivation of an employee. For example, a practice may be followed by one employee for religious reasons (i.e. adhering to kosher food restrictions) while another employee may follow same or similar practices for purely secular dietary reasons. According to the EEOC, examples of religious observances or practices include “attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, or refraining from certain activities.”6 The belief does not have to be recognized by an organized religion or faith community in order to be protected: “The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of employee or prospective employee.” Id.
Religious Beliefs Are Different From Ethical Viewpoints. The courts tend to distinguish religious beliefs from general ethical principles, protecting the former but not the latter. Protected religious beliefs typically reflect more than personal preferences or choices unrelated to any religious mandate. For many courts, the belief or practice must have some theological predicate as opposed to social, political or cultural preferences in order to be considered religiously grounded. Title VII protects unconventional religious beliefs held by individuals as well as traditional beliefs held by large groups within structured and organized religions, but they must fall within the regulations coverage. For example, an employee claiming a “Universal Belief System” prompting him to wear a myriad of religious symbols and traditional garb at work was not exercising a religious belief or practice and the employer properly disciplined him for violating the company’s dress code. Likewise, an employee’s personal choice to wear dreadlocks was not a protected religious practice under Title VII and did not insulate him from his employer’s dress code and grooming rules.7 Several courts have held that the tenets of the Ku Klux Klan are not religious beliefs.8 And, as one court explained, an employee’s desire
to display the confederate flag at work stemmed from pride in his heritage and not his religious beliefs.9 An interesting recent example occurred in Chenzira v. Cincinnati Children’s Hospital Medical Center, where a health care worker in a hospital refused to obtain a mandatory flu shot on the grounds that it contained animal products contrary to her vegan beliefs. While the employer argued that veganism was a viewpoint or philosophy and not a religious belief, relying on the EEOC’s guidance, the Court held that vegan beliefs could be sincerely held religious beliefs.10
C. How Do I Know If the Religious Belief or Practice Is “Sincerely Held?”
A religious belief or practice is sincerely held or “bona fide” if the employee subjectively perceives it as religious and genuinely adheres to the practice. The employer (or the court) may not adjudicate the “reasonableness” or “truth” of the underlying religious belief or practice. The only focus is whether the religious belief or practice is “truly held” by the employee. As one court explained, the appropriate inquiry is “whether the beliefs professed by a claimant are sincerely held and whether they are, in his own scheme of things, religious.”11 An employee who sporadically or inconsistently adheres to professed religious beliefs may open himself or herself up to a challenge that the asserted belief is not sincerely held. Reported cases in which employees asked to be relieved of working on the Sabbath provide examples. In Hansard v. Johns-Manville Products Corp., 1973 WL 129 (E.D. Tex. 1973), the employee sued for religious discrimination after his employer refused to accommodate his request to be scheduled off work on Sundays due to his religious convictions. While the employee’s religious practice did preclude Sunday work, the company was not required to accommodate the request because the employee could not prove the “requisite sincerity of religious convictions” because he had worked on Sundays for years.
II. Types of Religious Discrimination
A. Disparate treatment
As initially passed, Title VII only prohibited religious discrimination under the theory of disparate treatment. In 1966, Robert Dewey was fired for missing work on Sundays and he filed a charge of discrimination under the then newly enacted Title VII. Although he prevailed at the district court, the Sixth Circuit reversed finding in a 2-1 decision that there was no discrimination on the basis of his religion, rather he had been fired for not working assigned overtime in accordance with the collective bargaining agreement that was in place.
The holding was affirmed in a per curiam decision by the Supreme Court which reads in its entirety: “The judgment is affirmed by an equally divided Court.”12
That one line opinion had substantial consequences however, as in response Congress amended Title VII to obligate employers to accommodate an employee’s religious practices unless it could show to do so would be an undue hardship by adding the following definition:
The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.13
B. Failure to Reasonably Accommodate is a Form of Religious Discrimination
under Title VII
Employees of covered employers are protected from discrimination at work because of sincerely held religious beliefs or practices under Title VII of the Civil Rights Act of 1964. Not only are underlying religious beliefs protected at work, practices used to carry out those beliefs are within the umbrella of Title VII coverage and protection. Absent an undue hardship, employers must reasonably accommodate a religious belief or practice that is in conflict with a job requirement or rule. Often, the issue arises after an employee has been discharged or disciplined (or threatened with discharge or discipline) for not complying with a job requirement that is at odds with the employee’s religious beliefs. Whether an accommodation is “reasonable” under a given set of facts is the pivotal question and one that the courts have grappled with for years. In this paper, we explore the types of religious accommodation requests under Title VII that have been considered reasonable and unreasonable by the courts and the EEOC.
C. Many State Laws Also Prohibit Religious Discrimination
While this paper focuses on accommodation obligations under Title VII, the federal civil rights statute, many states have similar workplace protections against religious discrimination and harassment. Some states simply prohibit discrimination at work because of religion, but do not require an employer to affirmatively attempt to accommodate an employee’s religious practices at work.14 Texas however has adopted the same language as the 1972 amendment to Title VII, so like a number of other states it specifically requires an employer to make reasonable modifications to policies or procedures to accommodate religious beliefs and practices. 15
D. Where Do I Start?
The first step in any accommodation analysis is to determine whether the employee is entitled to an accommodation at all. Under Title VII, an employee can show a preliminary (or “prima facie”) case of religious discrimination for failure to accommodate a religious belief or practice by establishing the following: (1) the employee “has a bona fide religious belief that conflicts with an employment requirement;” (2) the employee “informed the employer of this belief;” and (3) the employee was discharged or disciplined for failing to comply with a job requirement in conflict with his or her religious belief or practice. Virts v. Consol. Freightways Corp. of Delaware, 285 F.3d 508, 516 (6th Cir. 2002). If the employee makes the above preliminary showing, the employer must demonstrate that it reasonably accommodated the employee’s religious belief or practice, or that the employee’s request was unreasonable because any accommodation would impose an undue burden on the employer’s business.
The second element may get adjusted as a result of a case heard by the Supreme Court last term. In EEOC v. Abercrombie & Fitch16, the Supreme Court was faced with who has the obligation to raise the issue of a possible accommodation. The 10th Circuit held that an applicant who was not hired after wearing a hijab to her interview, could not establish a prima facie case of discrimination, because she did not make a request for an accommodation.17
The Supreme Court did not agree with the 10th Circuit’s view that the applicant had the obligation to ask for an accommodation, holding instead that she could prevail as long as she showed the “motive” for the employer in not hiring her was to avoid having to make an accommodation to her religious practice. Although it might sometimes be difficult to show such motive without an applicant having made the request known, here there was no dispute that the employer considered the religious practice aspect in making its decision.18
Here is a way to look at the issue:
1. Does the employee have a sincerely held religious belief or practice?
2. Does the belief or practice collide with a work-related requirement? Does the employee’s objection to the job requirement stem from a bona fide religious belief or practice?
3. Did the employee notify the employer of the religious belief or practice? Does the employer have actual knowledge that a job requirement conflicts with a religious belief or practice?
4. Can the employer reasonably accommodate the employee’s religious belief or practice without creating an undue hardship on the employer’s business operations?
III. THE REASONABLE ACCOMMODATION PROCESS
A. The Duty To Accommodate Is Embedded In The Definition of “Religion” Under Title VII
The duty to reasonably accommodate a bona fide religious belief or practice stems from the 1972 amendment to Title VII’s definition of religion in 42 U.S.C. § 2000e(j):
The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.
The EEOC enforces Title VII’s prohibition of religious discrimination in the workplace. Through its regulations and interpretive written guidelines, the EEOC explains the scope of an employer’s duty to reasonably accommodate religious-based objections to workplace policies and rules. The EEOC’s Religious Discrimination Guidelines are found at 29 C.F.R. Part 1605 and apply to employers and unions. See, http://www.eeoc.gov/policy/docs/religion.html.19
B. Religious Accommodation: Know The Ground Rules
An employer must be notified that a religious belief or practice collides with a job requirement. An employee must generally notify his or her employer that a workplace requirement conflicts with a religious practice (for example, working on the Sabbath) and request an accommodation from the employer (e.g. a schedule modification).20 However, some courts have concluded that the employer must initiate the reasonable accommodation process even where the employee does not expressly request a religious accommodation (or a specific accommodation) as long as the employer has sufficient information “about an employee’s religious needs to permit the employer to understand the existence of a conflict between the employee’s religious practices and the employer’s job requirements.”21 This can be a dangerous slippery slope. Employers should not make assumptions about the religious beliefs or practices of employees, or make inquiries as to their beliefs or practices on the hunch that they may need an accommodation. Rather, once an employer has actual notice of a conflict either from the
employee directly or another source (for example, a co-worker) it should generally initiate a dialogue focused on possible accommodations. While it was hoped the Abercrombie & Fitch decision from the Supreme Court would bring clarity to the issue, it basically refused to set a bright line requirement, leaving it in each case an evidentiary question.
An employer does not have to provide the accommodation requested by the employee if a reasonable alternative exists. If several accommodations would be reasonable, the accommodation preferred by the employee is not required in order for the employer to satisfy Title VII. The employer does not have to show that the employee’s preferred accommodation would impose an undue hardship as a condition to offering another reasonable alternative. For example, in Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir. 1998), a police officer asked to be exempt from any assignment that required him to guard an abortion clinic based on his religious beliefs. The city refused, asserting that the applicable collective bargaining agreement allowed the officer to transfer to another district (where no abortion clinics were located) thus a reasonable alternative was available to him.22 In determining what is “reasonable” when several alternatives exist, the EEOC will look to the alternatives considered by the employer and compare them to the accommodations actually offered to the employee. In doing so, the “employer or labor organization must offer the alternative which least disadvantages the individual with respect to his or her employment opportunities.” 29 C.F.R. § 1605.2 (c)(2)(ii).
An employer may not rely on speculation, stereotypes or assumptions in deciding whether an accommodation is reasonable or imposes an undue hardship. A common mistake employers make is to refuse to consider an accommodation based on speculation and assumptions rather than actual facts or data as to its impact of that accommodation at work. Employers’ failure to provide sufficient and specific “proof” of an undue hardship is typically fatal to the employer’s defense and undermines the reasonableness of the employer actions. Speculation or assumptions may also provide evidence of a pretext for religious bias by the employer.23 See, Haliye v. Celestica, 717 F. Supp. 2d 873 (D. Minn. 2010) (denying summary judgment because employer presumptions ignored the fact that some Muslims have a large window for prayer while for others it must be conducted in a fairly limited window).
Employers and employees must confer and cooperate in the accommodation process. The fact that the employer’s attempt to accommodate proved unsuccessful may nonetheless preclude liability. For example, the Supreme Court concluded that an employer made reasonable attempts to accommodate an employee’s religious practices by: (1) conferring with the employee several times in an effort to resolve the conflict; (2) attempting without success to re-assign the employee to another position; (3) permitting the union to search for another employee to swap shifts with the employee; and (4) allowing the employee time off work to observe religious holidays whenever feasible. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). Likewise, employees seeking an accommodation for religious acts or beliefs must cooperate in good faith in the accommodation process. An employer is relieved of its obligation to identify and provide an accommodation in situations where the employee fails to participate in the process in good faith.24 However, the duty to cooperate is not synonymous with compromise, and an employee is not required to accept an accommodation that would violate her religious beliefs.25
IV. TYPES OF REASONABLE ACCOMMODATIONS
Reasonable accommodations typically fall into three broad categories: (1) modifying work schedules or leave polices to accommodate religious practices; (2) relieving or exempting
employees from work rules, policies or procedures that conflict with religious practices, and (3) allowing employees to transfer to positions that reduce the potential for conflict. Whether an accommodation is reasonable or an undue hardship is highly fact-specific. What may be reasonable in one context may be unreasonable in another, and employers should avoid blanket rules or across-the-board assumptions. For example, offering an employee a flexible schedule in order to observe his or her religious holidays or Sabbath practices may be reasonable in one situation, but not another.26
A. Voluntary Shift and Schedule “Swapping”
A common conflict exists between religious beliefs/practices and work schedules. Many religious practices require specific times of prayer, attendance at religious services or other observances. In these situations, employees often ask not to be scheduled for certain shifts or for time off when they would have otherwise been required to work. According to the suggested Best Practices issued by the EEOC in 2008, an employer should facilitate and encourage voluntary shift substitutions or swaps between employees of substantially similar qualifications by “publicizing its policy permitting such arrangements, promoting an atmosphere in which substitutes are favorably regarded, and providing a central file, bulletin board, group e-mail, or other means to help an employee with a religious conflict find a volunteer to substitute or swap.” 29 C.F.R. § 1605.2(d)(i). Most courts consider voluntary shift swapping a reasonable accommodation.27 Involuntarily requiring other employees to cover a shift, however, is typically not required. Often, the reasonableness of the employer’s response turns on how actively the employer facilitated the swapping process, such as advertising on bulletin boards and at roll call for swaps.28
B. Flexible Scheduling and Leave Policies
The EEOC also provides that employers “should consider adopting flexible leave and scheduling policies and procedures that will often allow employees to meet their religious and other personal needs. Such policies can reduce individual requests for exceptions.” 29 C.F.R. § 1605.2(d)(ii). Examples of possible accommodations include:
• Providing paid or unpaid leave29
• Granting extended or scheduled break periods
• Providing flexible departure and arrival times
• Use of lunch time in exchange for early departure
• Allowing staggered work hours
• Providing neutral rotating shifts
• “Splitting” or “balancing” truck loads with other drivers30
• Advertising on bulletin boards and at roll call for swaps
• Permitting employees to ”make up” time lost due to religious practices31
C. Lateral Transfers and Voluntary Demotions
An employer should consider transferring an employee to a comparable, open position that better accommodates the religious needs (and does not disrupt operations, violate seniority rules, or create more than minor costs) as a reasonable accommodation.32 If reassignment to a comparable position is not feasible, employers should also consider offering the employee an alternative position even if it would result in a decrease in pay, benefits and responsibility.33 There are, however, limits on whether the proposed transfer is reasonable. As one court
concluded, transferring an employee whose religious beliefs collided with the employer’s “clean shaven” rule to a “cold, uncomfortable, isolated work site, with significantly diminished responsibilities” was not reasonable.34
D. Modifying Dress Codes or Grooming Standards
A frequently litigated area involves employer-mandated dress codes, uniforms and grooming standards. Often, the issue arises where an employer’s dress code, uniform, grooming or safety rules conflict with an employee’s religious practice to wear certain clothing or adornments such as turbans, hijabs, khimar, yarmulkes, medals, headdress or similar items. Other religious practices that sometimes collide with workplace uniform and grooming rules include requirements that men wear beards, or that hair for men and women be a sufficient length or worn in braids. In these situations, employees often ask to be exempt from the employer’s dress or grooming requirements for religious reasons.35
As a general rule, courts have not required employers to create exceptions to uniform or grooming standards that are predicated on safety. For example, in Bhatia v Chevron, 734 F.2d 1382 (9th Cir. 1984), the Ninth Circuit concluded that the employer did not have to create an exception to its safety policy which required “all employees whose duties involved potential exposure to toxic gasses to shave any facial hair that prevented them from achieving a gas-tight face seal when wearing a respirator.” The plaintiff, a devout Sikh whose religious practices prohibited him from cutting his beard, was a machinist prior to the imposition of the new respirator safety rule. After accepting a transfer to a lower paying job that did not require respirator use, he sued, claiming that he should be allowed to continue his machinist duties without complying with the respirator standard. The court disagreed. First, the court noted that the employer made numerous reasonable efforts to accommodate the plaintiff by: 1) suspending rather than terminating plaintiff for refusing to shave, although it had terminated others who refused to shave; (2) actively seeking to transfer him to a job with comparable pay that would not require use of a respirator; and (3) when a job of comparable pay could not be found, offering plaintiff three lower paying jobs. Second, requiring the employer to assign plaintiff to duties as a machinist would have increased the company’s risk to liability under OHSA: ”Chevron has established that retaining Bhatia as a machinist unable to use a respirator safely would cause an undue hardship.”
E. Contributing Union Dues to a Substituted Charity
In 1980, Congress amended the National Labor Relations Act (NLRA) to permit union employees whose religious observances preclude them from paying union dues to donate an equivalent sum to a non-religious charity. 29 U.S.C. § 169. This provision, referred to as the “religious objector” provision, was declared unconstitutional by the Sixth Circuit in 1990 because it was limited to employees with “a particular sectarian affiliation and a particular theological position.” Only employees who were members of a religion that had historically held conscientious objections to union membership could invoke the statutory exemption. Wilson v. National Labor Relations Board, 920 F.2d 1282 (6th Cir. 1990). Although the NLRA statutory exemption was deemed unconstitutional due to its limited protection, many courts (including those within the Sixth Circuit) have subsequently held that diverting a sum equal to the union dues to a substituted charity is a reasonable accommodation under Title VII “because it lets the union enjoy the benefits of a union security provision while permitting employees ‘to practice in accordance with their religious convictions.’”36 Many collective bargaining agreements have provisions allowing substituted charity accommodations based on bona fide religious objections.
F. Allowing Religious Expression at Work – Proselytizing and Prayer
Employers may be confronted with situations where an employee wants to wear religious symbols at work, engage in religious phrases when communicating with employees or customers at work (e.g., “Have a Blessed Day”) or use a room in the employer’s facility for religious worship during the workday. Under the EEOC’s latest guidance, religious proselytizing includes: (1) display of religious items in an employee’s work area (e.g. Bible or Koran); (2) one-on-one discussions about religious beliefs; and (3) displaying religious icons or messages at work stations (e.g. posters). Whether these practices, including those for workplace prayer, can be reasonably accommodated depends on the facts.
Employers are not typically required to make such accommodations if it would create disruption to the workforce, create divisions at work along religious lines, make other employees feel “shunned,” or trigger co-worker or customer complaints.37 Prayer groups and/or prayer at meetings may be permissible if participation is completely voluntary and there are no employment-related consequences of opting out.38 However, employers may incur liability if participating employees get preferential treatment (or appear to receive preferential treatment).39 As one court explained, an employer’s uniform treatment of all religious groups in the workplace does not constitute religious discrimination or violate Title VII. See, Moranski v. General Motors, 433 F.3d 537 (7th Cir. 2005)(GM did not violate Title VII when it denied affinity group program status under its diversity initiative to “GM Christian Network” where its affinity program guidelines precluded programs based on any religious issues, including groups advocating agnosticism).
Whether it is an undue hardship to allow employees to engage in verbal religious expression with customers is also a fact-driven inquiry. Brief, anonymous greetings such as “Have a blessed day” are permitted if it has a minimal impact on customers, but undue hardship may be found where religious expression is part of the regular business interaction with a customer. For example, in Botnik v. HearingPlanet, Inc., the court granted summary judgment in favor of the employer who discharged an employee for violating the company’s anti-harassment policy after she was recorded discussing religion with customers over the phone on two occasions and after co-workers complained.40 However, an employer does not have a legal obligation to suppress religious expression merely because it annoys a co-worker. For example, in Powell v. Yellow Book, there was no Title VII violation where, in response to a co-worker’s complaint about an employee’s religious postings in her cubicle, the employee was relocated and the postings were allowed to remain.41 Likewise, in Ross v. Colorado Dept. of Transp, the court held that an employee’s religious objection to the re-scheduling of an employee appreciation lunch in order to include those observing Ramadan did not have to be accommodated where the employee’s request would have trampled on the religious rights of co-workers (i.e. by not rescheduling lunch). 42
These issues are even more acute in the public sector where employees’ free speech rights under the First Amendment are implicated. For instance, in one case, a Christian social worker at a state health department was observed giving spiritual advice and discussing the Bible with clients seeking treatment. The health department prohibited further religious counseling by the employee. The court held that the employer’s prohibition was warranted based on the undue hardship of a potential establishment clause violation.43 Significantly, the court noted that the employer did not impose a “general ban” on the employee’s religious speech, but merely prohibited religious counseling. However, where accommodating a sincerely held religious belief could not reasonably be interpreted as espousing the belief of an
employer, courts have consistently held that Title VII’s religious accommodation provision does not violate the Establishment Clause. In Hickey v. State Univ. of New York, the court declined to find a valid establishment clause concern where a Born Again Christian hospital worker defied instructions to remove a lanyard that said “Jesus loves you”44
It is important to remember that an employer has a parallel duty to maintain a work environment that is free of religious harassment. Striking a balance can be difficult because failure to respond to employee complaints about proselytizing could lead to charges of religious harassment, but requiring a religious employee to cease proselytizing could result in liability for failure to accommodate. In an interesting case illustrating the tension between religious accommodation and harassment, Shatkin v. Univ. of Tex. at Arlington, the plaintiffs prayed after-hours at the cubicle of a co-worker they felt needed to be “dispossessed” of her demonic spirit, and were fired for violating the University’s harassment policy.45 The court refused to summarily dismiss the case because fact questions remained whether an undue hardship on the employer existed (since the prayer occurred after-hours, not during the work day) and whether the harassment policy had been violated given the fact that the co-worker did not know about the prayer.
G. Selection Procedures
The duty to accommodate applies to current employees as well as applicants for employment. 42 U.S.C. § 2000e(j). Thus, an employer has a duty to reasonably accommodate an applicant’s religious practices when scheduling pre-hire tests or other selection procedures unless it would create an undue hardship to do so. 29 C.F.R. § 1605.3.46
V. THE LIMITS OF REASONABLE ACCOMMODATIONS: UNDUE HARDSHIP ON THE EMPLOYER’S BUSINESS OPERATIONS
An employer’s duty to reasonably accommodate religious beliefs and practices is not unlimited and is generally considered to be less demanding than the duty to reasonably accommodate disabilities under the ADA. Because the definition of “undue hardship” as developed in the context of religious accommodation cases provides a lower threshold than the “significant difficulty or expense” standard under the ADA, religious accommodations requiring more than de minimis monetary costs or administrative/operational burdens are not required. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).
In determining whether an undue hardship exists, the courts have considered the factors identified below. Keep in mind, however, that an employer’s insistence that an employee comply with a workplace requirement – or similar insistence that modifying or relaxing that requirement would be an undue hardship – may be a pretext for religious discrimination if the employer has offered the same or similar accommodation to other employees for non-religious reasons.47
A. Would the Employer Incur More than Minor Costs in Providing the Accommodation?
In one of the first cases to address an employer’s reasonable accommodation obligation, the Supreme Court held that an accommodation imposing more than a de minimis cost, both monetarily and in terms of administrative or operational burden, is not required. Trans World Airlines, Inc. v. Hardison, supra. For example, an accommodation that requires the employer to incur overtime costs is usually an undue hardship.48 Id. Likewise, costs incurred in hiring a substitute to cover the employee’s shift are generally considered to impose an undue
hardship.49
B. Would the Accommodation Create Safety or Sanitation Risks?
As mentioned above, an employer does not have to exempt employees from workplace rules or policies that are premised on legitimate safety concerns. Accommodations that create or increase safety risks are routinely considered by courts as unreasonable and imposing an undue hardship on the employer.50 Most courts require actual proof that relaxing the dress code, uniform, or grooming rule, or exempting the employee from a particular policy or practice, will create a genuine safety risk. Speculation and assumptions, including the concern that allowing the accommodation will “open the floodgates,” are not enough. Even if an undue hardship exists, employers are still required to offer other reasonable accommodations that do not undermine safety.51
In certain industries such as the hospitality industry, grooming standards (for example, “no beard” policies) are often justified by sanitation concerns. As such, requiring an employer to modify or relax those standards may create an undue hardship; provided, however, that the employer uniformly applied its grooming requirements and is not asserting the workplace rule as a pretext for discrimination against particular religious beliefs or practices. 52
C. Would the Accommodation Violate the Terms of a Collective Bargaining Agreement or Deprive Other Employees of their Seniority Rights?
Any accommodation that would adversely affect or deprive another employee of his or her rights under a neutral seniority system or the terms of a collective bargaining agreement creates an undue hardship.53 For example, a bus driver who was denied his religious-based request not to drive on Sundays was not discriminated against where accommodation would have required the employer to shift Sunday driving to other drivers in breach of the seniority provisions of the collective bargaining agreement.54 Employers should be careful, however, not to summarily reject a requested accommodation based on an overbroad application of a seniority system. Just because Title VII allows employers to rely on bona fide seniority systems in 42 U.S.C. § 2000e-2(h), other reasonable accommodations may exist and should be explored, including but not limited to, seeking waivers from the union or other union members.55
D. Would the Accommodation Jeopardize Customer Relations, Disrupt Business Operations or Require the Employer to Shift Work to Other Employees?
Accommodations that would disrupt business operations, undermine customer service or burden other employees by increasing their workload are usually considered an undue hardship. For example, in Noesen v. Medical Staffing, Inc., 232 Fed.Appx. 581, 2007 WL 1302118 (7th Cir. 2007), the court held that the employer properly fired a Catholic pharmacist who refused to speak to customers or doctors with telephone inquiries about birth control. Among other things, shifting the pharmacist’s responsibility to answer telephone calls and initially respond to any such request to other employees and thus diverting them from other duties created an undue hardship. Likewise, the employee’s insistence that he be relieved of all counter and telephone duties unless customers were “pre-screened” to ensure that they were not seeking birth control was unreasonable.56
E. Would the Accommodation Require the Employer to Violate State Law or the Rights of Other Employees?
Any accommodation that would require an employer to violate the workplace rights of other employees is most likely an undue hardship. The issue often arises in the context of religious expression at work, where one employee’s religious expression is perceived as harassing or retaliatory toward another employee. For example, in Bodett v. CoxCom, Inc., 366 F.3d 736 (9th Cir. 2004), the court held that an employer did not discriminate on the basis of religion by discharging an Evangelical Christian supervisor who repeatedly confronted a lesbian subordinate with statements that the Bible denounced her lifestyle. Title VII did not require the employer to accommodate the employee’s asserted religious beliefs by suspending its policy against workplace harassment. 57 Additionally, an accommodation that would create the appearance that the employer is establishing or favoring one religion over another is most likely an undue hardship, particularly for state or government employers whose actions are limited by the First Amendment. 58
F. Would the Accommodation Adversely Affect “Company Image” or Customer Preferences?
The EEOC insists that concerns about company image or customer reaction cannot create an undue hardship or permit an employer from refusing to relax its uniform or grooming standards to accommodate religious clothing or practices. In its guidance, the EEOC explains: “Customer preference is never a justification for a discriminatory practice. Refusing to hire someone because customers or co-workers may be ‘uncomfortable’ with that person’s religion or national origin is just as illegal as refusing to hire that person because of religion or national origin in the first place.” 59 In specific situations, however, some courts have held that an employer may insist that employees adhere to a particular grooming or dress codes even where they collide with religious practices. See, e.g., Cloutier v Costco Wholesale Corp., 390 F.3d 126(1st Cir. 2004)(Costco was not required to exempt employee from its dress code rule against facial jewelry that conflicted with her religious practices as a member of the Church of Body Modification: “Costco has a legitimate interest in presenting a workforce to its customers that is, at least in Costco’s eyes, reasonably professional in appearance.”)
VI. EXEMPTIONS FOR RELIGIOUS ORGANIZATIONS
A. Title VII Exemption for Religious Institutions
Title VII generally allows religious corporations and educational institutions to discriminate on the basis of religion relative to employment decisions, including employment decisions beyond hiring or firing. 42 U.S.C. § 2000e-1(a). Because of this, a religious corporation or educational institution may give preference in hiring decisions to those of a particular religion. 42 U.S.C. § 2000e-2(e)(2).60 Religious institutions may also make religious-based employment decisions where the employee’s conduct is at odds with the religious principles of the employing organization.61 Whether a corporation or educational institution is a religious entity entitled to the exemption is highly fact-specific, with courts often closely comparing the institutions secular and sectarian activities.62
B. The Ministerial Exemption
The ministerial exception is a constitutionally-based doctrine that prohibits “ministerial” employees from using Title VII or state discrimination laws to sue the religious institutions that employ them. The ministerial exemption stems from the Free Exercise Clause of the United States Constitution and, in some states, from a similar provision under a state constitution. In
essence, the constitutional right to freely exercise a religion protects religious institutions from judicial review and trumps workplace discrimination laws when it comes to employees engaged in ministerial activities. For example, the United States Supreme Court upheld application of the ministerial exemption to bar an ADA claim by a “called” Lutheran teacher against a Lutheran school.63
VII. PUBLIC EMPLOYERS AND FEDERAL CONTRACTORS
A. First Amendment Guarantees of Free Speech and the Free Exercise of Religion
The First Amendment to the United States Constitution generally guarantees individuals the right to freely exercise religious beliefs free from unwarranted government interference, while simultaneously prohibiting state action that “establishes” or favors religion in general or one religion over another.64 Public employees may challenge employment actions (or inaction) by their government employers that violate or interfere with their First Amendment rights, both as to the freedom of speech (i.e., freedom to express religious beliefs at work) and the free exercise of religion (for example, the right not to work on their Sabbath).65 In turn, other public employees may assert under Title VII or the Constitution the right to be free from religious proselytizing or other religious expressions at work. While a full discussion of the constitutional interplay in this area is beyond the scope of this paper, public employers often walk a constitutional tightrope when asked to accommodate religious activities and expression at work. Many courts have applied the Title VII balancing framework in evaluating claims of religious discrimination brought by public employees under the Free Speech and Free Exercise Clauses of the United States Constitution.66
B. Religious Freedom Restoration Act of 1993 (RFRA)
The RFRA statutorily imposes a strict scrutiny test. It provides that “government” may not substantially burden a person’s exercise of religion even where the burden is caused by a “rule of general applicability” unless the government demonstrates a compelling interest and the burden is the least restrictive means available to further the government’s interest. 42 U.S.C. § 2000bb-1. The RFRA does not apply to state governments and was generally considered to limit the actions of the federal government.67 More recently, the RFRA has been used by private parties challenging application of a federal law that burdens the exercise of a religious belief or practice.68 For example, in Burwell v. Hobby Lobby Stores, Inc., the Supreme Court held that the regulations under the Affordable Care Act that required employers to provide health-insurance coverage for methods of contraception violated the RFRA because the government could not show that they were the least restrictive way for the government to serve a compelling government interest.69
C. Federal Contractors and Sub-Contractors
OFFCP guidelines prohibit federal contractors and subcontractors from engaging in religious bias in connection with federal contracts. Federal contractors and subcontractors must make affirmative efforts to reasonably accommodate religious beliefs and practices, specifically an employee’s Sabbath and religious holiday observances, unless it would impose an undue hardship. Considerations of undue hardship must take into account (1) financial costs and expenses; (2) business necessity and (3) “resulting personnel problems.” See, 41 C.F.R. § 60-50.3.
VIII. CONCLUSION AND BEST PRACTICES
• Develop and implement a written policy prohibiting workplace discrimination based upon religion and informing employees that the company will make reasonable efforts to accommodate the employee’s religious practices.
• Dress code and grooming policies, including any safety-imposed limitations, should be clearly and unambiguously stated in writing and distributed to employees. Employees should be required to acknowledge in writing that they received and agree to comply with company policies.
• Determine with advice of counsel whether state laws impose additional or different limitations on the company’s duty to accommodate religious practices at work.
• Develop an internal process for responding to requests for religious accommodations. Make sure the person leading the response effort is well-trained relative to religious accommodations and has a full scope of knowledge regarding the company’s business operations.
• Make decisions about the reasonableness of an accommodation based on the facts rather than assumptions or speculation. Do your homework. For example, do not automatically assume that the requested accommodation will violate the terms of a collective bargaining agreement. Even if a violation is likely, do other alternatives exist that would be consistent with the collective bargaining agreement?
• Engage the employee to the fullest extent possible in the accommodation process by seeking the employee’s input on possible accommodations. Make sure the process is confidential and do not disclose the employee’s underlying religious beliefs beyond a strict “need to know” basis.
• Avoid the appearance that the decision to accommodate or not accommodate was based on the employer’s assessment of the validity or reasonableness of the underlying religious beliefs or practices. The accommodation, not the underlying religious belief or practice, must be reasonable.
• Train managers and supervisors how to recognize and respond to requests for religious accommodations. Generally, managers and supervisors should be advised to forward all requests for accommodation to Human Resources or any other centralized office.
• Document the reasons for the decisions to accommodate or not accommodate the employee’s religious beliefs. Explain why an accommodation would impose and undue hardship. Be specific.
• Before granting or denying an accommodation for religious practices, public employers should consult with counsel to determine if any
additional limitations exist under federal or state constitutional Free Exercise, Free Speech or Establishment Clauses.
ENDNOTES
1 EEOC Charge Statistics FY 1997 through FY 2015 (http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm).
2 “It is now widely accepted that a company's desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently based on race.”
3 Davis v. Fort Bend County, (No.13-20610) (5th Cir. 2014).
4 Frazee v. Illinois Dept. of Employment Sec., 489 U.S. 829, 834 (1989).
5 Welsh v. U.S., 398 U.S. 333, 339 (1970).
6 EEOC, Questions and Answers: Religious Discrimination in the Workplace, p.1 (July 22, 2008); http://www.eeoc.gov/policy/docs/qanda_religion.html.
7 Lorenz v. Wal-Mart Stores, Inc., 2006 WL 1562235 (W.D. Tex. 2006), aff’d 225 Fed.Appx. 302 (5th Cir. 207); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977); Eatman v. United Parcel Service, 194 F.Supp. 2d 256 (S.D.NY. 2002).
8 See, Slater v. King Soopers, Inc., 809 F.Supp. 809 (D. Colo. 1992)(employer did not discriminate on the basis of religion or otherwise violate Title VII by discharging a Ku Klux Klan member following his initiation of an Adolf Hitler rally at work).
9 Storey v. Burns Intern. Security Services, 390 F.3d 760 (3rd Cir. 2004).
10 2012 WL 6721098 (S.D. Ohio Dec. 27, 2012).
11 Bailey v. Associated Press, 2003 WL 22232967, at * 7 (S.D.N.Y. 2003).
12 Dewey v. Reynolds Metals Company, 402 U.S. 698 (1971). Justice Harlan had recused himself leaving eight justices to hear the case.
13 42 U.S.C. 2000e(j).
14 For example, Michigan law prohibits religious discrimination in employment but does not require a covered employer to modify policies or practices to accommodate those beliefs or practices. Wessling v. Kroger Co., 554 F.Supp. 548 (1982).
15 Texas Labor Code §21.108.
16 Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc (14-86 pending).
17 Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., No. 11-5110, (10th Cir. 2013), cert. granted.
18 EEOC v. Abercrombie & Fitch Stores, Inc. __ U.S. __ (June 1, 2015).
19 Questions and Answers About Employer Responsibilities Concerning the Employment of Muslims, Arabs, South Asians, and Sikhs (March 21, 2005) found at http://www.eeoc.gov/facts/backlash-employer.html; Questions and Answers: Religious Discrimination in the Workplace (July 23, 2008) found at http://www.eeoc.gov/policy/docs/qanda_religion.html; Best Practices for Eradicating Religious Discrimination in the Workplace (July 23, 2008) found at http://www.eeoc.gov/policy/docs/best_practices_ religion.html.
20 29 C.F.R. § 1605.2.
21 See, for example, Brown v. Polk County, 61 F.3d 650, 654 (8th Cir. 1995) cert. den. 516 U.S. 1158 (1996); Cary v. Carmichael, 116 F.3d 472 (4th Cir. 1997)(employee does not have to identify or request a specific accommodation but must inform his employer of the need for accommodation and cooperate in good faith in determining a reasonable accommodation).
22 See also, Cosme v. Henderson, 287 F.3d. 152, 158 (2nd Cir. 2002)(“to avoid Title VII liability, the employer need not offer the accommodation the employee prefers. Instead, when any reasonable accommodation is provided, the statutory inquiry ends.”)
23 See, EEOC v. Red Robin Gourmet Burgers, Inc., 2005 WL 2090677 (W.D.Wash. 2005)(“unproven assumption” did not satisfy employer’s burden to establish undue hardship); Ford v. City of Dallas, 2007 WL 2051016 (N.D. Tex. 2007)(employer’s “unsubstantiated assertion” that it would incur more than minor costs in creating a position for the plaintiff who could not work on her Sabbath did not establish an undue burden).
24 Bush v. Regis Corp., 2007 WL 4230693 (11th Cir. 2007)(unpublished)(summary judgment of plaintiff’s claims of religious discrimination affirmed where the employer offered several reasonable scheduling alternatives and plaintiff did not participate in good faith in seeking an accommodation).
25 Crider v. University of Tennessee, Knoxville, 2012 WL 3002756 (6th Cir. 2012).
26 Compare: Cosme v Henderson, supra (allowing an employee who bid for a job that he knew involved Saturday work in contravention of his religious practices to routinely skip scheduled Saturday shifts was not required by Title VII) with Bush v. Regis Corp., supra (relieving employee of scheduled Sunday shifts in conflict with her religious observances or allowing her to start her shift after her religious services ended was a reasonable accommodation).
27 See, e.g., Opuku-Boateng v. State of Cal., 95 F.3d 1461 (9th Cir. 1996)(voluntary shift trade system was feasible and reasonable); Morrissette-Brown v. Mobile Infirmary Medical Center, 506 F.3d 1317 (11th Cir. 2007)(employer reasonably accommodated an employee’s need to be off work on Friday afternoons and evenings for religious observances where employer used neutral rotating schedule, allowed the employee to swap her Friday shifts and provided her with a master schedule to do so, and offered her a position which did not require work on Friday).
28See, EEOC v. Robert Bosch Corp., 169 Fed.Appx. 942 (6th Cir. 2006)(unpublished)(employer’s failure to actively seek out substitutes to cover an employee’s shift was evidence of religious discrimination); Kenner v. Domtar Industries, Inc., 2006 WL 522468 (W.D. Ark. 2006)(question of fact whether employer acted reasonably before terminating the plaintiff, a preacher, for refusing to work on Sunday where employer merely referred the plaintiff to the collective bargaining agreement provision allowing employees to swap shifts with management approval).
29 See, Getz v. Commonwealth of Penn., 802 F.2d 72 (3rd Cir. 1986)(allowing an Orthodox Jewish employee to take paid leave under the applicable collective bargaining agreement to observe certain religious holidays was a reasonable accommodation); Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986)(remand to determine whether employer’s permission to use unpaid but not paid leave as a religious accommodation was reasonable and whether employer offered paid leave to other employees for secular purposes in a way that discriminates against religious practices).
30 See, Sturgill v United Parcel Service, Inc., 102 FEP Cases 707 (8th Cir. 2008)(jury verdict that employer violated Title VII by discharging UPS driver who failed to complete his delivery route in December because it would have required him to work past sundown in violation of his Sabbath practices affirmed where evidence showed that employer could have reasonably accommodated the employee by balancing his truck load and/or splitting his load with other employees in a manner that would not have violated the union contract or imposed other than minimal costs on the employer).
31 In 1978, Congress statutorily required federal employers to allow federal employees compensatory time off for religious observances. 5 U.S.C. § 5550a.
32 See, Cosme v. Henderson, 287 F.3d. 152, 160 (2nd Cir. 2002)(employer’s offers to transfer employee, who successfully bid for a job that required occasional Saturday work in conflict with his Sabbath observances, to another route that did not require Saturday work or to an “unassigned regular” position which would not result in work on Saturdays were reasonable accommodations).
33 Cosme v. Henderson, supra., (offer to transfer employee to other shifts that would not require Saturday work was reasonable even though employee would have forfeited seniority for the first 90 days in the new position); Vaughn v. Waffle House, Inc., 263 F.Supp. 2d 1075(N.D. Tex. 2003)(employer’s offer to transfer employee to a new position that would better accommodate religious practice was reasonable even though it would have resulted in a wage reduction).
34 Brown v. F. L. Roberts & Co., 419 F.Supp.2d 7 (D. Mass. 2006).
35 See, EEOC v. Alamo Rent-A-Car, LLC, 432 F.Supp.2d 1006 (D. Ariz. 2006)(employee who wore a headscarf at work as part of her month long observance of Ramadan stated a claim of religious discrimination where employer forbade the practice after September 11, 2001 even though there was no express corporate policy prohibiting headscarf’s at work and plaintiff had been doing so prior to the September 11 attacks).
36 See, Bushouse v. Local Union 2209, 164 F.Supp.2d 1066 (N.D. Ind. 2001); Reed v. International Union, UAW, 523 F.Supp.2d 592 (E.D. Mich. 2007)(provision of collective bargaining agreement allowing religious objector to pay sum equal to union dues to a substituted charity provided a reasonable accommodation and Title VII did not require employer to allow employee to pay a reduced amount to charity proportionate to the amount paid by non-union members who made Beck objections).
37 See, Anderson v. USF Logistics, Inc., 274 F.3d. 470 (7th Cir. 2001)(employer properly precluded employee from telling customers “Have a Blessed Day” in written correspondence following a customer complaint, although employee was allowed to use the phrase with co-workers).
38 EEOC Compliance Manual Section 12, Examples 50-51 (“EEOC Compliance”).
39 See Panchoosing v. General Labor Staffing Servs., Inc., No. 07-80818, 2009 WL 961148, at *7 (S.D. Fl. April 8, 2009).
40 No. 3-11-0591, 2012 U.S. Dist. LEXIS 91862 (M.D. Ten. July 3, 2012)
41 445 F.3d 1074 (8th Cir. 2002)
42 No. 11-cv-02603, 2012 WL 5975086, at *8 (D. Colo. Nov. 14, 2012)
43 Moore v. Metropolitan Human Servs. Dist., No. 09-6470, 2010 WL 3982312 (E.D. La. Oct. 8, 2010).
44 No. 10-CV-1282(JS)(AKT), 2012 WL 3064170, at *9 (E.D.N.Y. July 27, 2012)
45 No. 4:06-CV-882-Y, 2010 U.S. Dist. LEXIS 68500 (N.D. Tex. July 9, 2010)
46 According to the EEOC, an employer should not make pre-offer inquiries about an applicant’s availability to work certain hours in a way that would compel the applicant to disclose his or her religious practices. However, an employer may “state the normal work hours for the job and, after making it clear to the applicant that he or she is not required to indicate the need for any absences for religious practices during work hours, ask the applicant whether he or she is otherwise available to work those hours.” Id. Inquiries into reasonable accommodations may only occur post-offer.
47 See, Hedum v Starbucks Corp., 546 F.Supp.2d 1017 (D. Oregon 2008)(summary judgment of employee’s claim of religious discrimination under Title VII was properly denied where employee, who
practiced Wiccan religion and wore religious necklaces to work, was subjected to repeated comments by her supervisors about her religion and religious necklaces while employees who wore Christian crucifix necklaces were not; question of fact existed whether the employer’s attendance policy was applied to employee as a pretext for religious discrimination); Nead v. Board of Trustees of Eastern Illinois University, 2006 WL 1582454 (C.D. Ill 2006)(nurse employee who was known to be religious stated prima facie case of religious discrimination under Title VII where she was asked in promotion interview whether she had any objections to dispensing the “morning-after” pill and was denied the promotion when she stated she was religiously opposed to emergency contraceptives).
48 TWA v. Hardison, supra., (requiring employer to incur overtime costs to cover a shift imposed an undue burden); Getz v Commonwealth of Penn., 802 F.2d 72 (employer not required to permit employee to work overtime in order to accumulate more vacation time for use in observing religious holidays).
49 Brener v. Diagnostic Center Hosp., 671 F.2d 141 (5th Cir. 1982).
50 See, Bhatia v. Chevron, supra.(retaining a machinist who was unable to use a respirator safely created an undue hardship); EEOC v. Kelly Services, ___F.3d.___ (8th Cir. 2010)(Case No. 08-3880, March 25, 2010)(summary judgment for employer affirmed where requiring commercial printing facility to exempt plaintiff, whose religious practices required her to wear a khimar, from its dress policy prohibiting all hats, loose long hair or other items that could become caught in fast-moving conveyor belts, would impose an undue hardship).
51 See, Potter v. District of Columbia, 101 FEP Cases 1302 (D.D.C. 2007).
52 Compare, EEOC v. Sambo’s of Georgia, Inc., 530 F. Supp. 86 (N.D. Ga. 1981)(restaurant employer did not violate Title VII when it refused to create an exception to its grooming policy proscribing excessive facial hair for management candidate whose Sikh faith required him to wear a beard) with Mohhamed Sheik v. Golden Foods & Golden Brands, 2006 WL 709573 (W.D. Ky. 2006)(question of fact existed whether employer discriminated on the basis of religion where, shortly after September 11, 2001, it suspended its earlier accommodation allowing female employees whose religious beliefs precluded them from tucking in their shirts to wear clothing untucked; evidence existed that employer’s safety and sanitation concerns were a pretext for religious discrimination).
53 Trans World Airlines, Inc. v. Hardison, supra; Stolley v. Lockheed Martin Aeronautics, Co., 228 Fed.Appx. 379, 2007 WL 1010418 (5th Cir. 2007)(reassigning the employee to another department and shift to better accommodate his Sabbath observances, although acceptable to the transferee department, was not required where the seniority provisions of the collective bargaining agreement prohibited such reassignments).
54 Fouche v. New Jersey Transit, 2012 US App Lexis 14524 (3rd Cir 2012).
55 Balint v. Carson City, 180 F.3d 1047 (9th Cir. 1999); See also, Cosme v. Henderson, 287 F.3d at 161 (“Simply because employers are not required to breach a seniority agreement does not mean that they cannot opt to do so in appropriate circumstances.”).
56 See also, Aron v. Quest Diagnostics, Inc., 174 Fed. Appx. 82 (3rd Cir. 2006)(employer was not required to make an exception to its policy requiring all employees to work on Saturday for employees whose Orthodox religious practices proscribed Saturday work where employer could not reasonably limit employee to only those clients who were closed on Saturday and relieving the plaintiff from Saturday work would unduly undermine the morale of other employees); West v. Shands Hospital, 2006 WL 763213 (N.D. Fla. 2006)(employer did not discriminate on the basis of religion by firing employee who celebrated a supervisor’s death by making comments at work about “God’s revenge” and “divine judgment” – the employee’s rude and inappropriate celebration at work disrupted the workplace).
57 See also, Peterson v. Hewlett-Packard Co., 2004 U.S.App. LEXIS 72 (9th Cir. 2004)(employee’s request to either (1) hang an anti-homosexual poster quoting biblical scriptures next to the company’s diversity poster identifying the rights of gay employees, or (2) require the employer to remove reference to homosexuality from its diversity posters, both created an undue hardship).
58 Berry v. Department of Social Services, 447 F.3d 642 (9th Cir. 2006)(Department of Social Services did not discriminate against an employee by precluding employee, an evangelical Christian, from engaging in religious discussion with clients, holding prayer meetings in a conference room or displaying a Bible or “Happy Birthday Jesus” sign in his cubicle because the risk of violating the establishment clause in the First Amendment created an undue hardship); Moranski, v. GM, supra (declining affinity group program status to Christian group did not violate Title VII).
59 See, EEOC Guidance, 2008; http://www.eeoc.gov/policy/docs/religion.html.
60 Killinger v. Samford University, 113 F.3d 196 (11th Cir. 1997)(Title VII statutory exemption for religious educational institutions broadly interpreted to apply to a university whose mission was to foster Christianity).
61 For example, in Boyd v. Harding Academy of Memphis, Inc., 88 F.3d 410 (6th Cir. 1996), the court held that a religious school could lawfully terminate a pregnant, unmarried teacher where extra-marital sex violated religious precepts of the school that employed her. While the statutory exemption under Title VII permits discrimination on the basis of religion in certain circumstances, it does not generally insulate a religious institution from claims for other types of discrimination, such as race or gender. See, Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 658 (6th Cir. 2000)(statutory exemption did not shield a Catholic school from claim of gender discrimination if it did not uniformly apply the rule against pre-marital sex to male teachers).
62 See, for example, Hall v. Baptist Memorial Health Care Corp., 215 F.3d 618 (6th Cir. 2000).
63 Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 132 S.Ct. 694 (2012). See also, Herzog v. St. Peter Lutheran Church, 2012 WL 3134337 (N.D. Ill Aug, 1 2012)(“called” teacher was exempt from civil rights coverage where she taught secular subjects and well as engaged in religious activities and held religious training). But see, Dias v. Archdiocese of Cincinnati, 2012 WL 1068165 (S.D. Ohio 2012)(computer teacher at Catholic school did not qualify for ministerial exception when he was not Catholic and was not allowed to teach religious components).
64 Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985)(Connecticut statute that gave employees broad rights not to be compelled to work on their Sabbath unconstitutionally established religion). There are a number of cases addressing whether unemployment benefits may be properly denied to employees who were discharged or quit work due to the employer’s inability to accommodate their religious practices. See, for example Hobbie v. Unemployment Appeals Com’n of Florida, 430 U.S. 136 (1987).
65 See, e.g. Spratt v. Kent County, 621 F.Supp. 594 (W.D. Mich. 1985) aff’d 810 F.2d 203 (1986), (6th Cir. 1986)(unpublished)(social worker employed by the Department of Corrections did not have a claim of religious discrimination where she was fired for engaging in prayer, Bible study and spiritual counseling at work); Piggee v. Carl Sandburg College, 464 F.3d. 667 (7th Cir. 2006)(cosmetology instructor did not state a constitutional or statutory claim in challenging her discharge for providing religious booklets banning homosexuality to openly gay students).
66 Booth v. Maryland, 327 F.3d 377 (4th Cir. 2003); Delisle v. Brimfield Tp. Police Dept., 94 Fed.Appx. 274, 2004 WL 445181 (6th Cir. 2004)(unpublished)(employee who claimed he was demoted in retaliation for complaining about Police Chief’s proselytizing at work stated a claim under Title VII and the First Amendment). See, Guidelines on Religious Exercise and Religious Expression in the Federal Workplace (August 14, 1997).
67 City of Boerne v. Flores, 521 U.S. 507 (1997).
68 See, for example, Hankins v. Lyght, 441 F.3d 96 (2nd Cir. 2006)(RFRA properly asserted as a defense to ADEA lawsuit brought by Methodist minister against the National Methodist Church); Redhead v. Conference of Seventh-Day Adventists, 440 F.Supp.2d 211 (E.D.N.Y. 2006)(fact question whether teacher was fired because of sex and/or pregnancy or due to evenly applied religious and moral code).
69 134 S.Ct. 2751 (2014).
Michael W. Fox
Ogletree Deakins
michael.fox@ogletreedeakins.com
Austin (Office: 512-344-4711, Fax: 512-344-4701)
Education:
J.D. with high honors, University of Texas School of Law, 1975
B.A., with honors, Stephen F. Austin State University, 1972
Mr. Fox has represented employers for more than forty years. He has been Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization since 1980 and is a Fellow in the College of Labor and Employment Lawyers. He has been regularly listed in Best Lawyers in America in Labor and Employment Law, as a Texas Monthly “Super Lawyer” in employment litigation and as one of America’s Leading Lawyers for Business by Chambers USA, where he was characterized by clients as a “great trial lawyer” with a “knack of identifying the points in the case to focus on.”
Mr. Fox defends employers in employment law litigation including successfully defending the first male on male sexual harassment case tried to a jury in Texas. He has had jury trials in the four largest cities in Texas as well as other parts of the state including Amarillo, Texarkana and El Paso, and outside the state in New Mexico, Las Vegas, New Orleans and Winston-Salem, North Carolina.
In addition to jury trials, he has represented employers in more than 25 arbitration hearings on non-labor matters including race, sex and national origin discrimination, wage and hour claims, breach of contract and enforcement of covenants not to compete.
Mr. Fox also has extensive experience representing employers in collective actions under the FLSA. In 2008, he was successful in decertifying a class of more than 1,000 opt-ins and then obtaining a favorable jury verdict in the claims of the named plaintiffs.
In November, 2009 Mr. Fox was called as an expert witness to testify before the Senate Judiciary Committee based on his extensive experience with jury trials and arbitration. His testimony provided a strong defense of arbitration of employment claims as well as support for the Supreme Court's "common sense" limitation of the mixed motive instruction in jury trials under the ADEA.
In July, 2002, Mr. Fox started the first employment law related web log, Jottings By An Employer's Lawyer. Mr. Fox is also the Editor of HR Specialist, Texas Employment Law, a National Institute of Business Management publication.
Admitted to Practice:
Texas
U.S. Supreme Court
U.S. Court of Appeals, Fifth Circuit, Ninth Circuit, Tenth Circuit
U.S. District Court, Eastern, Northern, Southern and Western Districts of Texas
Honors and Awards:
Order of the Coif
Board Certified, Labor and Employment Law, Texas Board of Legal Specialization Fellow, College of Labor and Employment Lawyers
Fellow, Texas State Bar Foundation
Listed in Texas Labor and Employment Lawyers, Chambers USA Client Guide (since 2004)
Best Lawyers in America (since 1999)
Super Lawyer by Texas Monthly (since 2003

Thursday, May 24, 2018

The Ancient system of Pledging!!!

The Ancient System of Pledging
Colonel Edward Mandel House revealed that the American people would be, "...required to register their biological property in a national system designed to keep track of the people and that will operate under the ancient system of pledging." Now, if this Ancient System of Pledging could be used against the people after one was, "Born of a Woman, born UNDER the law, (meaning a new born offspring of slaves is still a slave), for pledging their, "Life, liberty and (property) pursuit of happiness," to government through REGISTRATION, which is another way of saying ABANDONED, or to abandoned property (in other words, electing another man as their King in place of their Creator, 1 Sam 8). Could that very same Ancient System of Pledging be used to proclaim by Deed to whom one has pledged their, "Life, liberty and (property) pursuit of happiness," too overturn and effectively rebut all presumptions correcting the mistake that caused presumption to be used in place of expressing such a Will (TRUST) at the time one reached the age of majority? Could such a deed be used as proof to show that one is now and forever, "Born from above," born of fire for pledging their Life and Liberty and Happiness to their Creator through the One that redeemed them without money? What religious organization has ever explained how to effectively present how one needs to respond for that gift honorable in the manner that has just been presented? More importantly, who would ever dare have the audacity to counter such a deed and do so without trespass and trespassing the prohibition against involuntary servitude? The doorway (gate) to Self-governance can ONLY be found through the ministry of reconciliation, on the firm and unwavering foundation that the Word of the Promise has been completely fulfilled, and there is nothing more to do, other than for each one to respond to it in reply. In all boldness and even dogmatism, there is NO other way for one to be found to be ready for self-governance.

Interview with Roger Smith ..true history of Canada

SCHEDULE “C”

The following is an excerpt from an interview by George Barr, King’s Council, with R. Rogers Smith sometime in the mid 1940’s and on “Ligue pour l’Union Federale”, 822 Sherbrooke Est, Mtl. (Acquired from the Archives of the Province of Saskatchewan)

A CANADIAN CONSTITUTION

Questions by G. H. Barr, King’s Council

Answers by R. Rogers Smith

Mr. Barr: I understand, Mr. Smith that you have made a rather exhaustive study of our Constitutional position for some years past and have come to the conclusion that in the national interest the entire position should now be clarified?

Mr. Smith: I consider this indispensable.

Mr. Barr: I should like to ask you a few questions to get your viewpoint on various phases of the situation?

Mr. Smith: good—I am only too pleased to give you any information I have gathered from the facts of history and constitutional authorities. Also, if you desire my reasons for stating that a clarification of our constitutional position is indispensable.

Mr. Barr: What is the source, Mr. Smith, from which the authority of government in Canada originates?

Mr. Smith: In Nova Scotia, King James VI of Scotland granted a charter to Sir William Alexander (afterward Earl of Stirling) to the lands extending from Penchscot Maine to the St. Lawrence River, including what is now New Brunswick and Prince Edward Island. As well as a small acreage in the City of Edinburgh where Stirling Castle now stands. “This was declared Nova Scotia territory in the reign of Charles I, in order that Baronets of Nova Scotia might ‘take seizin’ of their lands without leaving Scotland, and is there a lawyer in Edinburgh who will deny the fact that in the eyes of his profession this bit of Scotland is really in Canada?” (In search of Scotland, 1933-by H. V. Morton). The grant was a lease with a clause for the payment of three Indian arrowheads per year. The present flag and Coat of Arms were granted in 1625 by Charles I, as King of Scotland. Nova Scotia never belonged to England then, or later. Prince Edward Island was separated from Nova Scotia and made an independent province in 1770. New Brunswick was detached from Nova Scotia and made an independent province August 16th, 1784.

Thomas Carleton was the first Governor.

In the case of Quebec - a “Constitution” was granted to Governor James Murray
November 21st, 1763, by the “Board of Trade and Plantations”, signed Yorke and Yorke (see Sessional Papers 18). The Lords of Trade and Plantations, afterwards known as the Board of Trade and Plantations, and, finally, as the Board of Trade, received their authority from the Crown in Chancery. In the reign of Queen Elizabeth “Members of Her Majesty’s most learned and honourable Privy Council (divers orders thereunto called) conceived and established the Crown in Chancery to administer affairs in connection with and exercise authority over the waste lands or commons of England”. Newly discovered or conquered lands were placed under this Department of Lands, whose offices are at Whitehall, London. When the Treaty of Union, 1707, uniting England and Scotland, was signed, the administration of affairs in connection with Scottish land was granted to this Department.

Nova Scotia, which was now a “British” possession also, was placed under the Crown in Chancery. It is a common assumption that the Monarch, or the House of Commons, or House of Lords, grant authority to a Governor General. Such is not the case. Governors General receive their authority only from the Crown in Chancery. It is not permitted that the King, or any member of the House of Commons or Lords even suggest that anyone be appointed. The affairs of the Crown in Chancery are administered by the Sec’y of State that he be appointed. The Sec’y of State alone is responsible for the retention of a colony as a British Possession. He must not be circumscribed in any way in the exercise of his powers.

(2) Sir George Fiddes, who was Under-Secretary from 1909-1916, explains the difference between a “Governor” and a “High Commissioner”.

Page 45:

“The Secretary of State, broadly speaking, has no executive authority within the territorial limits of a Colony or Protectorate. His authority is exercised through the Governor (or, in the case of some protectorates, the High Commissioner) with whom he alone corresponds and to whom alone he issues his instructions.”

After the Governor General is appointed by the Secretary of State “Letters Patent” are drafted and signed by Sir Claude Schuster, Clerk of the Crown in Chancery. The Secretary of State for the Colonies in Britain corresponds to a Minister of Lands in Canada. He alone is responsible for the retention of a Colony as a possession of the British people. He therefore must not be interfered with in his appointment or removal of a Governor or High Commissioner.

After the “Letters Patent” are attested, the Governor now is introduced to His Majesty at the Court of St. James, where he receives a letter of directions form His Majesty called “Instructions”. If we add to the “Letters Patent” and “Instructions” the added powers granted to the Governor General in the British
North America Act, we have the same sum of dictatorship on March 23rd, 1931 as were granted to Governor James Murray by the Board of Trade and Plantations November 21st, 1763.

Mr. Barr: “What is the source from which the authority of government originates?”

Mr. Smith: It originates in the title to land. When the King was absolute Monarch, in him alone existed the Sovereign power. He could-and did-sign grants or leases for “three acorns” a year to Dukes, Lords, Earls, etc., many of which exist today. The Duke of Wellington paid his lease to His Majesty on July 6th, 1944. This was one little “silken Union flag”. These are called “entailed estates”. It is true that the lease granted by Queen Elizabeth to Sir Walter Raleigh was also ratified by Parliament, but it was not until Charles II ascended the Throne, that the Monarch was not the Sovereign Power. Today the King can sign a lease or enact a law “by and with the advice and consent of the Lords Temporal, Spiritual and Commons in Parliament Assembled and with the authority of the same as follows: (The King alone has no power.)

Today the People of Britain are Sovereign, not only over the British Isles but also all Colonies which they own.

The “Titles” to these lands are in the custody of the “Crown in Chancery”. This is the reason we call them “Crown Lands”.

The British people do not own Canada today.

None of the Provinces are required to pay rent. Since December 11th, 1931, the ownership to the land is held by each Province. The Legislature of each Province can make laws exclusively in connection with property and the title is held in the custody of the Department of Lands. All Provinces of Canada today are Sovereign States.

The Province does not divest itself of ownership when the Department of lands grants a title to a “homestead” in “fee simple” or “free and common soccage”. It is well understood by both the purchaser and the Province that the Legislature retains the right to “tax” the land. This “tax” is the rent the purchaser pays. If a person dies intestate or fails to pay his “tax”, the land reverts to the Province in the first case or is repossessed by the Province by way of a “tax” sale.

(3) The answer to your question would not be complete without the statement that: The Sovereign right to govern originates in, nor can it be divested from the ownership of land.

In order that “Sovereignty” be exercisable by a Central Government in Canada, it is indispensable that the Sovereign Provinces divest themselves of those powers
which they collectively desire the Central Government to administer and to “cede” to the Central Government some land, such as the District of Columbia, U. S. A.; Mexico City, District Federal of Mexico; or District of Canberra in Australia. This is called the right of “Eminent Domain”.

It is admitted that England and Scotland signed a treaty uniting them on January 14th, 1707. Article 1 of the treaty states that “Her Majesty shall be requested to appoint ensigns armorial to conjoin the crosses of St. George and St. Andrew into one flag”. This flag, by the way, was first flown at the celebration to commemorate the union, held in St. Paul’s Cathedral, London, May 1st, 1707. Prior to this time, James Sixth of Scotland had granted a charter to Sir William Alexander-afterwards the Earl of Stirling-for New Scotland, as the King stated that “Old England” has “New” England and France has “New” France, I see no reason why Scotland should not have “New Scotland”, (and used the Latin term “Nova Scotia”) which extended at that time from Penchscot Maine to the St. Lawrence River, including Gaspe-what is now New Brunswick; also Prince Edward Island.

Charles I, upon coming to the throne, granted to Nova Scotia paid a lease for the lands of three Indian arrowheads per year.

It may be of interest to comment that Scotsmen were not permitted to go to an English Colony, nor were Englishmen permitted to go to a Scotch Colony. At this time there was a death penalty for a Frenchman to leave Canada to take up residence in the State of New York.

After the union of England and Scotland, the Colonies were under the Lords of Trade and Plantations. This was altered to the Board of Trade and plantations and finally to the Board of Trade.

Would it be true then to say, Mr. Smith, that at the time of the granting of Letters Patent creating the Colony of Nova Scotia, the source or power granting those letters was the Sovereign of Scotland; where then did the Board of Trade get its authority?

Mr. Smith: At the union of England and Scotland, all Scottish lands were placed with English lands in the Crown in Chancery as possessions of the British people and all Colonies, that is to say, New England and New Scotland, were placed together under this same department.

The Crown in Chancery delegated the administration of and the exercise of authority over the Colonies to the aforesaid Board of Trade and Plantations. At this time the profit from owning Colonies was attained through the Navigation Acts, which were that everything and anything-manufactured articles used in the Colonies, must be imported from Great Britain in British bottoms by British crews and anything raised in the Colonies must be trans-shipped to Britain in British bottoms and by British crews. To
make this effective, it was provided that anything exported by the Colonies to any foreign country would be regarded as contraband. But it should be noted that “the Colonists had all the privileges of Englishmen and were governed by laws of their own making”. It was not until Burke’s Act was enacted in 1782-22 Geo. III Ch. 82, abolishing the authority of the Board of Trade and Plantations and the Governors of the Colonies were told to make their returns to a committee of His Majesty’s Privy Council, that the Colonial Office assumed the administration of affairs and the exercise of authority over all Colonies. Comparing the sessional papers 18 which were granted by the Board of Trade to Murray in 1763 with the Letters Patent issued to Earl Bessborough March 23rd, 1931 with the instructions issued by His Majesty and also the British North America Act, we find this “mutantis mutandis” the same. Therefore I think we can agree with the statement of Judge W. H. P. Clement of the Supreme Court of British Columbia, on page 1 of his “Constitution of Canada,” Third Edition, issued in 1916, as follows; “It was no part of the scheme of Confederation to alter in any essential respect Colonial relationship or to weaken the Crown’s headship; and there is nothing in the (BNA) to indicate a surrender in any degree by the British Parliament of that cardinal principle of the Constitution, the supreme legislative authority of the British Parliament over and through the British Empire. Our colonial position suggests at once two lines of limitation upon Canada’s power of self-government, the first that she cannot legislate as to the Imperial Constitution; and secondly that she has no power to dictate the essential framework of her own as provided in the British North America Act unless indeed that power is conveyed to her by the Act itself”.

It may be said here, in passing, that Judge Clement wrote this fifteen years before the enactment of the Statute of Westminster, for the Statute of Westminster is the only enactment pertaining to Canada which has in any way altered our status since the Sessional papers 18 were granted to James Murray in 1763.

What was the nature of the papers so granted, in brief, and to what extent were the people themselves given the power to make the laws under which they were governed?

It is admitted that James Murray was a “corporation sole” in 1763. It is known by chapter 85 of the Revised Statutes of Canada, 1927, that the office of the governor general is a “corporation sole”.

Mr. Barr: Would it be true to say that the only charters granted for the government of Canada were these three documents, that is, the Letters Patent of Nova Scotia, the Sessional Papers 18 to Murray, and the Letters Patent granted to Paterson for the Island of St. John which subsequently became Prince Edward Island-that these were the only authority granted up to the British North America Act of 1867?

Mr. Smith: Yes! In explanation I would like to make it clear that no papers of any kind were ever issued to any governor to come to Canada, by the King, the House of Commons, or the House of Lords. The last papers issued to a governor to Canada
were those granted at the time of the appointment of Earl Bessborough, March the 23rd, 1931. 

These papers were granted by the Crown in Chancery, or Department of Lands of Great Britain, giving him the full authority to govern Canada. After the Governor receives his appointment, he is introduced to the King at the Court of St. James, where he is granted a letter of instructions by His Majesty. But it is not true to state that any Governor of Canada ever was a Viceroy. It will be remembered that when Lord Willingdon finished his term of office as Governor General of Canada and returned to London, he was sent by George the Fifth as his Viceroy to India and shortly after his arrival he knighted three princes of India “Sir”.

Mr. Barr: Has any change taken place in the appointment of Governor General since the passing of the Statute of Westminster?

Mr. Smith: No governor general since the enactment of the Statute of Westminster has received any papers from the Crown in Chancery of Great Britain to act as Governor General in Canada.

Mr. Barr: I understand the successor to Bessborough was John Buchan, afterwards Lord Tweedsmuir. How was he appointed?

Mr. Smith: Lord Tweedsmuir has a commission, signed by R. B. Bennett, which was never Gazetted in the Canada Gazette. This is the only paper extant in connection with Lord Tweedsmuir’s appointment to Canada.

Mr. Barr: How was Mr. Bennett appointed?

Mr. Smith: It should be understood that Mr. Bennett was made a member of His Majesty’s Imperial Privy Council’ that acting in this capacity he could commission a governor general but he could not grant any papers to him to govern Canada. (a commission without authority).

Mr. Barr: Is it true that the present governor general of Canada is in exactly the same position in regard to the authority he purports to exercise as Lord Tweedsmuir was?

Mr. Smith: He is!

Mr. Barr: Who signed the commission for the Earl of Athlone?

Mr. Smith: The minister of justice in a letter dated July 10th, 1940, states that his excellency the Earl of Athlone came to Canada not in the capacity of Viceroy of His Majesty, except in the popular sense of the term, and-----he is not the agent or representative of His Majesty’s Government in Great Britain or any Department of that Government.

Mr. Barr: Under what authority does he purport to act? It is inconceivable to me that a man would purport to exercise the authority of Governor General unless he has some document or title or written authority from some person having the power to give him such authority to act in that capacity. What has the Earl of Athlone?

Mr. Smith: This is a prevalent assumption and one which should be definitely refuted. There is no record anywhere of the Earl of Athlone having received any authorization from the Crown in Chancery to act as Governor General of Canada. It might be opportune to request of the Earl of Athlone a copy of the credentials under which he purports to act before recognizing any Lieutenant Governor which he may appoint for this Province. Now I would like to explain further that since Canada is no longer under the Department of Lands of Great Britain since the enactment of the Statute of Westminster, that they are not in a position to grant any powers to anyone to act as the governor general of Canada.

Since that date, the British Government sent to Canada a British High Commissioner, the present incumbent, the Rt Hon. Malcolm MacDonald.

In explanation I would say that before 1931 we had four British High Commissioners for the empire, one for Palestine, for Singapore, for the Islands of the Pacific and for Basutoland. There is no higher office within the competency of the Secretary of State of Great Britain to confer higher than that of High Commissioner. These men could order an attack by the British Army or the British Navy within the orbit of their authority (jurisdiction). High Commissioners are sent to Protectorates of the British Empire which are not Colonies. Their powers greatly exceed the powers of Governor General. It might be interesting, in passing, to comment that if no enactment or order in Council is valid without the assent of some representative of the British Government, the orders in Council passed since the Statute of Westminster should have been assented to by the British High Commissioner at Earnscliffe instead of being assented to by a purported Governor General at Rideau hall.

Going to the next phase of the discussion, let us enumerate the various individuals, groups, institutions, or officers under which the Government of Canada is carried on. Prior to the enactment of the Statute of Westminster, the Government of Canada was composed of a Governor General and a Select Committee of His Majesty’s Imperial Privy Council. Three of this committee are resident in London and administer affairs in connection with foreign relationships. Two of this committee functioned in the House of Commons, two in the Senate; one headed the Supreme Court of Canada and two other, namely Sir William Thomas White and Dr. T. J. McNamara were available to act as Chairman of any Royal commission.

Mr. Barr: Who appoints these parties to the Imperial Privy Council for Canada and how are they paid?

Mr. Smith: They are appointed by His Majesty and of the 319 members who compose the Imperial Privy Council for the Empire the lowest remuneration that they are eligible to receive is 2,000 pounds per year.

Mr. Barr: Who are the present occupants of those positions for Canada resident in London?

Mr. Smith: Lord Beaverbrook, Lord Greenwood and Lord (R. B.) Bennett. In the House of Commons of Canada we had the Rt. Hon. W. L. MacKenzie King; in the Senate the Rt. Hon. Arthur (15 minutes of fame) Meighen and Rt. Hon. George Graham. In the supreme court, Sir Lyman P. Duff.

Mr. Barr: Who of these parties are still functioning?

Mr. Smith: The three in London and the Rt. Hon. MacKenzie King in Canada. The others who are not actually exercising an office in Canada are still members of the Government of Canada by virtue of being members of the Imperial Privy Council for Canada, all of whose names are to be found in the parliamentary guide. There would appear to be an anomaly here; for instance, in the case of Arthur Meighen, he is no longer a member of the House of Commons or the Senate of Canada but he is still listed as a member of the Imperial Privy Council and since no man in Canada can occupy that position unless he is a member of one of these bodies, he is by virtue of the appointment which has never been revoked technically a member of the Government of Canada although not holding any elected position.

Mr. Barr: Is there not a Canadian Privy Council as well as the Imperial Privy Council for Canada?

Mr. Smith: There is! This council is nominally composed of around 150 members -150 members of whom are summoned and appointed by the governor general and members thereof may be from time to time removed by the governor general. In order to ascertain how many are appointed and how many are removed from time to time, compare the list in 1935 with the present list.

Mr. Barr: What will that disclose?

Mr. Smith: It would at least disclose that the Duke of Windsor was a member in 1935 and was removed from the Privy Council by Lord Tweedsmuir.

Mr. Barr: Is it true then that men were appointed to and removed from this important body without reference to any elective authority in Canada?

Mr. Smith: Yes! Although it is the practice for the governor general to summon and appoint the heads of what is commonly know as the “cabinet”. To make myself clearersuppose that the C. C. F. were elected with a majority in Canada, a number of those
around18-would be summonsed and appointed by the governor general to form a cabinet.

Mr. Barr: To make it clear, you speak of 18 forming a cabinet. Is the cabinet a separate and distinct body from that called the government, men who are the minister of the crown?

Mr. Smith: A distinction should be drawn between government and parliament. The governor general is the governor of Canada. The House of Commons and the Senate of Canada, and the Privy Council for Canada, as well as the Lieutenant Governors of the Provinces and the Legislatures of the Provinces were to aid and advise the governor general in the government. It may be said that all of these bodies were members of different standing in a kind of “Ladies Aid” for their constituted powers are no greater than the powers that the Ladies Aid are able to exercise as a body of the United Church. House of Commons, being the elected representatives of the people. It should be held in mind that the House of Commons are elected by and only by British subjects. These words “British subject” occur 11 times in the Elections Act. Anybody not admitting to be a British subject can be challenged at the polls.

Mr. Barr: Can it be said then that the House of Commons is elected not by all the Canadian people because there are Canadians who do not qualify as British subjects, people actually born in Canada? Does not this indicate, Mr. Smith, that there should be something to establish the status of the Canadian citizen in order that he, in that capacity, may vote to elect his own Parliament? Is it not true that on the taking of the census, it has been repeatedly stated, and the enumerators are instructed not to list any person as a Canadian citizen, or one of Canadian nationality because there is no such thing? Is not that true?

Mr. Smith: Yes! Census takers are instructed not to accept the answer “Canadian”.

Mr. Barr: So that we have no Canadian citizenship? No Canadian nationality and no Canadian flag?

Mr. Smith: Insofar as Canadian citizenship and Canadian nationality are concerned, you are correct, but we have what may be said to be a Canadian flag, on which was granted in 1625 by Charles I to the only territory in Canada at that time under the British monarch, namely, Nova Scotia, which I have previously explained took in what is now “Gaspe, New Brunswick, and Prince Edward Island, as well as the present Province of Nova Scotia”, and for this reason we cannot say that the Maritimes have no flag, and I think if the colonists in Quebec, after the Capitulation of 1763, had stated that they would fly the flag which had been granted to the Maritimes, I cannot conceive of the Imperial authorities having any objection.




THE SENATE:

Mr. Smith: Certain men who are qualified by property and standing in their community may be from time to time summonsed and appointed as Senators by the Governor General. He shall, subject to the provisions of the B. N. A. Act, hold his place in the Senate for life. If a vacancy happens by resignation, death or otherwise, the Governor General shall by summons to a fit and qualified person fill the vacancy and the Governor General may from time to time, by instrument under the Great Seal of Canada, appoint a Senator to be Speaker of the Senate and may remove him and appoint another in his stead.

Mr. Barr: As part of the House of Commons we have the Government or Cabinet Ministers or Ministers of the Crown, each of whom is given the power to administer the affairs of a certain department. Just what, in brief? How are they constituted?

Mr. Smith: It should be remembered that in this connection Canada was a Dominion and “a Dominion” is defined by Lord Thring in Section 18, para. 3, of the Interpretations Act (Imperial) as follows;

“The expression “Colony” shall mean any of her Majesty’s Dominions (exclusive of the British islands and British India) and where parts of such Dominions are under both a Central Legislature and Local Legislatures, all parts under the Central Legislature shall, for the purpose of this definition, be deemed to be one colony”

So that, in answer to your question, I would say that the Cabinet of the House of Commons, or any members of the House of Commons, have no more power or authority than have the members of any Legislative Assembly of any of the British Colonies. The function of a Legislature of a Colony is to aid and advise the Governor General, who is the government, and the Cabinet is to administer affairs in any department to which he is appointed by the Governor General. But it cannot be remotely said that either the Legislative Assembly of Canada nor the House of Commons of Canada, are responsible to the Canadian people-they are responsible only to the Governor General.

Mr. Barr: Am I to take it from what you say that they have no power to make laws? It is recognized by both the House of Commons, the Senate as well as the Legislatures of the Provinces, they cannot enact any measure unless it is assented to by the Governor General or by the Lieutenant Governor of a Legislature-as the case may be. So that while they may introduce legislation and enact laws, such laws do not become effective or, in fact, become law until they receive such assent?

Mr. Smith: You are correct! But I would like to draw to your attention to: “It shall not be lawful for the house of Commons to adopt or pass any vote, resolution, address or Bill for the appropriation of any part of the public revenue, or of any tax or impost, to any purpose that has not been first recommended to that House by message of the
Governor General in the session in which such vote, resolution, address, or Bill is proposed”- Section 54, of the British North America Act.

Mr. Barr: In common practice, that is expressed something as follows: “all moneybills-must originate with the government”. So that, insofar as the expenditure of public money is concerned, it originates with the Governor General and can only become effective after passing the House and the Senate and the Assent of the Governor General?

Mr. Smith: Correct! – Only the salary of the Governor General is the first charge against the Consolidated Revenues of Canada after the expenses of collection are paid. His salary amounts to $48,666.66 per year and expenses. This is the fact in this regard as given by the Auditor General of Canada.

PRIME MINISTER OF CANADA

Mr. Barr: Just how is he appointed?

Mr. Smith: The present incumbent is elected from Prince Albert and receives an indemnity of $4,00.00 per year. After being called upon to form a government by the Governor General, he receives $15,000.00 per year as being the member of the King’s Privy Council for Canada, holding the recognized position of First Minister.

Mr. Barr: Who pays the $15,000.00?

Mr. Smith: Canada pays that on the orders of the Governor General. (Salaries Actcap. 186 Revised Statutes of Canada).

PROVINCIAL LEGISLATURES:

Mr. Barr: How are they constituted?

Mr. Smith: The Legislature of the Province is composed of the Lieutenant Governor and elected members.

Mr. Barr: How is the Lieutenant Governor appointed?

Mr. Smith: The Lieutenant governor appointed solely by the Governor General.

Mr. Barr: Is he obliged to comply with any request or submit his suggestions or receive advice from elected representatives?

Mr. Smith: No! As the Governor General was a “corporation sole” for the Central Legislature of Canada, the Lieutenant governor is equally a “corporation sole” in the legislature of each Province. His powers are to act as the representative of the Governor General and he has all powers necessary to carry on the government of the
Province. There is, of course, no such thing as second Chamber or Senate in the Provinces except in the Province of Quebec where they have in addition to the Legislative Assembly a Legislative Council appointed by the Lieutenant Governor.

Mr. Barr: Consisting of how many members?

Mr. Smith: I think it is 24. I would not be sure.

Mr. Barr: What functions do they exercise in Quebec?

Mr. Smith: Much the same functions as the Senate exercises in Ottawa.

PROVINCIAL CABINET OR GOVERNMENT:

Mr. Barr: How is this constituted?

Mr. Smith: The Cabinet of the Province is constituted in much the same manner as is the Cabinet at Ottawa.

Mr. Barr: The Premier of the Province-he is appointed by whom?

Mr. Smith: He is appointed to his position by the Lieutenant Governor and exercises the same functions within his jurisdiction as the Dominion Prime Minister within his. He must subscribe to an oath of office to the Lieutenant Governor before assuming such office.

Mr. Barr: Jurisdiction of the various Provinces-groups-committees-jurisdiction of the Governor General? 

Mr. Smith: We find these powers and authorities set forth in Letters Patent, the last of which were granted, as I have said before, to Earl Bessborough March 23rd., 1931. Canada Gazette, Oct. 12th., or 19th., of 1935. You will find there a proclamation issued by Sir Lyman P. Duff which tells you that he is acting as the Governor General of Canada and that he is to swear in the Governor General under letters Patent of June 15th., 1905. These had been revoked in 1931 by the Crown in Chancery under Letters Patent dated March 23rd., 1931. 

He can “do and execute, in due manner, all things that shall belong to his said office, and to the Trust We have reposed in him, according to the several powers and authorities granted or appointed him by virtue of “the British North America Act, 1867” and of these present Letters Patent and of such Commission as may be issued to him under Our Sign Manual and Signet, and according to such instructions and may from time to time be given to him under Our Sign manual and Signet and to such Laws as are or shall hereafter be in force in Our said Dominion”. He is authorized to use the Great Seal for sealing all things whatsoever that shall pass the said Great Seal. He has the appointment of all judges and justices of the peace. He can suspend or
remove from office any person exercising any office within our said Dominion, under or by virtue of and Commission or Warrant which may be granted by Us in Our name or under Our authority. He can summon and dissolve the Dominion Parliament. He can appoint deputies of himself to exercise or administer any powers which he may have-or less powers if the Governor General so desires. He appoints all officers of the Army, Navy, Air Force, Harbour Commissioners, and any office in Our said Dominion. All these officers are required and commanded, both civil and military, and all of the inhabitants of Our said Dominion to be obedient, to aid and assist Our said Governor General, or in the event of his death, incapacity or absence to obey such person or persons as may from time to time under the provisions of these Our Letters Patent administer the government of our said Dominion. (See: Statutes of Canada (second session) 21-22 Geo. V Parts I-II, p. xix.) 

Summing up—it will doubtless be conceded that it was not logical for the British to grant General James Murray less than a dictatorship if they held him responsible for the retention of the Colony of Canada as a possession. No dictatorship could be granted more inclusive of power than the constitution of the Colony of Quebec granted by the Board of Trade. Today, if we add the letters Patent granted to Earl Bessborough March 23rd., 1931; the Instructions issued by his Majesty; the Colonial Laws Validity Act of 1865, and the British North America Act 1867-1930 together and divide by common sense, we get exactly the same mathematical quotient as we find in the constitution granted to Murray November 21st., 1763, published in Sessional Papers 18.

DOMINION HOUSE OF COMMONS-CONSTITUTION AND JURISDICTION

Mr. Barr: The Constitution is settled by Sections 37 to 57 of the British North America Act, 1867. These provide, in brief, the constitution of a House of 181 Members to be summoned, called together and prorogued from time to time by the Governor General. What would you say, Mr. Smith, is the jurisdiction or authority of the House of Commons?

Mr. Smith: Before answering your question, I would like it to be understood that the House of Commons is constituted of a Speaker and a body of elected Members. The Speaker is appointed by the Governor General and is one of the Presidents of the Parliament of Canada, the other being the Speaker of the Senate. The Rt. Hon. W. L. MacKenzie King is a Vice-President of the Parliament of Canada and the Leader of the Opposition also a Vice-President. There is no office of Prime Minister. Once only has the term “Prime Minister” been used in the statute. (See Debates in the House April 10th., 1935, Hansard. P. 2509). It may be said here that the House of Commons, together with the Senate and the King’s Privy Council for Canada, are an ancillary body to aid and advise the governor General in the government of Canada.

Mr. Barr: This hardly coincides, Mr. Smith, with the conception of the average citizen of Canada. What comment have you to make in that regard?

Mr. Smith: It is only in the popular sense of the term that the present incumbent, Rt. Hon. MacKenzie King is given the courtesy title of “Prime Minister”. Naturally, if Canada were a democracy, we would have a Prime Minster and a House which would make the laws of Canada and whose enactments could not be disallowed by the British Government, or any department of that Government. The popular conception of the Government of Canada is a variance with the facts. The situation was brought to the attention of the House by W. F. Kuhl, the Member for Jasper-Edson, Alberta, and has from time to time been brought to the attention of the public, but to this date no remedy has been offered for this anomalous situation. Based upon the British North America Act of 1867, the House of Commons has been given jurisdiction over certain matters as set forth in section 91, and subject to the approval of the Senate and the assent of the Governor General, the Bills passed by the housed form the Statue Law of Canada. It will be noted, in passing, that no Bill involving the expenditure of public money may be introduced or initiated except by the Governor General in Council.

Mr. Barr: The Senate, Constitution and Jurisdiction?

Mr. Smith: I would say that probable the Senate is constituted as a brake on the enactments of the House of Commons to revise and correct any mistakes that may be made. Sometimes their efforts have been conducive to uniformity, but it is a moot question as to whether the Senate itself serves any useful purpose. It is entirely an appointment by the Governor General and the qualifications of the person to be appointed to the Senate appear to be more of a property qualification than of his personal ability. The Speaker of the Senate is the President of the Parliament of Canada and that he is entirely under the influence of the Governor General may be realized by reading Section 34 of the British North America Act, as follows;

“The Governor General may from time to time, by instrument under the Great Seal of Canada, appoint a Senator to be Speaker of the Senate, and may remove him and appoint another in his stead”.

Mr. Barr: The Imperial Privy Council-jurisdiction, functions and authority. What, Mr. Smith, is their authority, or what is their jurisdiction?

Mr. Smith: It may be said that the Imperial Privy Council for Canada is a body delegated by the British Government to carry on the executive government of Canada. Three members of this council reside in London - Lord Beaverbrook, Lord Greenwood and Lord Bennett. Their functions are to administer matters in relation to Canadian Foreign Affairs. Those residing in Canada had certain duties and acts to perform, such as the administration of the affairs of Canada n the absence of the Governor General. This particular duty was exercised by Sir Lyman P. Duff. The
duties of the Rt. Hon. MacKenzie-King are to act as one of the Vice-Presidents of the parliament of Canada; to warn of any impending legislation by the parliament of Canada which would interfere with the rule of the Governor General and also to scrutinize any enactments emanating in Provincial legislatures. It it is necessary to appoint a Chairman of a Royal Commission, the R. Hon. William Thomas White could serve on such a commission or to regiment the people of Canada into a straitjacket by the formation of a Selective Service for Canada. Dr. T. J. McNamara, another member, would carry out the orders of the British Government. At the present time, if you will consult the parliamentary Guide, you will find only 9 members of His Majesty’s Privy Council.

Mr. Barr: The King’s Privy Council - jurisdiciton?

Mr. Smith: The King’s privy Council for Canada is constituted by the Governor General. The method is set forth in Section 11 of the British North America Act, as follows;

“There shall be a Council to aid and advise in the government of Canada, to be styled the Queen’s Privy Council for Canada; and the persons who are to be members of that Council shall be from time to time chosen and summoned by the Governor General and sworn in as privy councilors; and members thereof may be from time to time removed by the Governor General”.

Mr. Barr: What are their functions and jurisdiction, Mr. Smith?

Mr. Smith: The jurisdiction and functions of the King’s Privy Council for Canada may be said to be that of an ancillary body, similar to the Ladies Aid of the United Church. The Ladies Aid of the United Church advise the Moderator and I think have as much influence in the activities of the United Church as the King’s Privy Council for Canada have in connection with the government of Canada.

Mr. Barr: Would it be true then, Mr. Smith, to say that their function is purely advisory? They have no executive authority at all?

Mr. Smith: Their function is purely advisory for the reason that if they, or any of them, were to attempt to impose their ideas upon the Governor General, the Governor General has the power to remove them and appoint another in his stead.

Mr. Barr: In common practice, what do they do? Does not the Governor General act upon the advice of his Cabinet, which is a part of the privy Council?

Mr. Smith: I will answer your question, Mr. Barr, by asking you a question. If it came to matters of real importance, would you not, even if you were a dictator, take the advice of your Cabinet?

Mr. Barr: That would likely be the course anyone would take. But would it be fair
then to say that in common practice in Canada as it has developed, the Governor General is supposed by the average man to act on the advice of that portion of the Privy Council constituting the Cabinet for the time being, but legally if it came to an issue as between what the representatives of the people wanted on the one hand and what the Governor General felt was necessary on the other in the matter of Imperial policy, his viewpoint would prevail in spite of the recommendations of the privy Council or any members thereof?

Mr. Smith: The popular conception is that the Governor General acts upon the advice of his Privy Council for Canada but I know of many instances in Ottawa where the Governor General has acted without consulting any of the members of His Majesty’s Privy Council or of the King’s Privy Council for Canada—using his prerogative which is given in Section 12 of the British North America Act -that he may act individually as the case requires.

Mr. Barr: If required, could you give specific instances, Mr. Smith, to prove this statement?

Mr. Smith: I could.

CABINET JURISDICTION

Mr. Smith: The Cabinet consists of what are commonly spoken of “Minister of the Crown”, each with a portfolio, having charge of certain departments of Government. The Cabinet, with the Prime Minister, are generally spoken of as “the Government”, as distinct from the House of Commons itself.

Mr. Barr: What is their jurisdiction Mr. Smith?

Mr. Smith: Individually each member of the Cabinet is given a specific task to perform. They are chosen and appointed to their positions by the Governor General and are generally elected members. But it will be remembered that after the electon of 1935 Mr. Dunning was appointed as Minister of Finance before he had a seat as an elected member of the House of Commons. Any of their acts in the performance of their duties may be nullified by the Governor Geneal or the member may be removed from office. As an instance of this, the R. Hon. MacKenzie King was removed by Lord Byng and Arthur Meighen appointed to his position of the First Minister of the King’s Privy Council for Canada.

PROVINCIAL LEGISLATURE 

Mr. Barr: Jurisdiction?

Mr. Smith: The Provincial Legislature is of course elected by the people and uder the British North America Act, Section 92, has jurisdiction over certain specific matters
supposed to be of local concern and interest. The same procedure and authority within its competence is largely the same as that exercised by the Dominion House of Commons within its competence.

The Legislature of the Province is composed of a Lieutenant Governor and elected members, varying in the different Provinces as to number. Contrary to popular conception, the Lieutenant Governor is the more important part of the Legislature. The members of the Legislature may enact a measure but it does not become law until assented to by the Lieutenant Governor. It has not been long since the Clerk of the Alberta Legislature arose in the house and said that “His Honour the Lieutenant Governor doth reserve these Bills for the signification of His Excellency the Governor General’s pleasure thereon”. No other action but this was taken. The members of the Alberta Legislature, assuming that Lord Tweedsmuir was a duly authorized Governor General appointed by Great Britain and that no enactment made by them would be considered law unless it were assented to by some appointee in the Government of Great Britain, thought that their Act had been disallowed but no specific action was ever taken in relation to those Bills as can be verified by consulting the Canada Gazette. In explanation, I may say that it would be necessary for the disallowance of an Act of the Legislature by the Governor General, that some proclamation be published in the Canada Gazette before such Bill could be disallowed.

Mr. Barr: In connection with these three bills then, Mr. Smith, as I understand it, the Lieutenant Governor, having received no reply from the Governor General, never assented to the Bills so that they really never became law?

Mr. Smith: That is correct. The Lieutenant governor of the province is to all intents and purposes the “alter ego” of the Governor General.

PROVINCIAL CABINET

Mr. Barr: Their function and jurisdiction within the sphere of competence under the British North America Act is practically the same as that of the Dominion Cabinet within its sphere or competence.

What, in your opinion, was the effect on Canada’s status of the Statute of Westminster, Mr. Smith?

Mr. Smith: The Statute of Westminster has altered the status of each and every Province of Canada.

Section 11 of the Statute of Westminster raises each Province of Canada from the position of a Colony to that of a sovereign state. 



Section 11 is as follows;

“Meaning of “Colony” in future acts. Notwithstanding anything in the Interpretaion Act, 1889, the expression “Colony” shall not, in any Act of the Parliament of the United Kingdom passed after the commencement of this Act, include a dominion or any Province or State forming part of a Dominion”.

As there is no intermediate status between that of a Colony and a sovereign state and any Province of Canada is no longer a Colony, they must, of necessity, be sovereign states as they come within the requirements set for the in Section 11.

Mr. Barr: You are aware of course, Mr. Smith, that under Section 7, subsection (1) the benefit of the Statute of Westminster insofar as the Dominion itself is concerned, is withheld, that is, the provisions of Section 2 in regard to the Colonial Laws Validity Act do not apply to the British North America Act. Consequently the dominion Government cannot repeal or amend any portion of that Act. Is it not fair to say then that insofar as the Dominion is concerned, the Statute of Westminster left us in exactly the same position as we were before, that is insofar as the Dominion Parliament is concerned.

Mr. Smith: The answer is no! The British North America Act is a statute of the Imperial Parliament creating an ancillary body to aid and advise the Governor General and it could only be effective if there is a duly appointed Governor General for Canada. 

As no person receives any credentials from the Crown in Chancery to act as Governor General of Canada, we may, if we choose, disregard the British North America Act. 

As Section 7, para. 2, grants to each Province individually those powers which were granted to the Commonwealth of Australia, the Union of South Africa, the Irish Free State, new Zealand and Newfoundland, the Provinces of Canada can either assert themselves as sovereign states or they may mutually agree to create a union of the Provinces.

Mr. Barr: What, if any, difference is there in respect to the appointment of a Governor General in Canada since the passing of the Statue of Westminster?

Mr. Smith: In answering your question, I may say, without fear of contradiction, that since the enactment of the Statute of Westminster, no Governor General has been dispatched to Canada by the British Government, or any department of that Government. Instead of a governor General, we now have a British High Commissioner, the present incumbent of that office being the Rt. Hon. Malcolm MacDonald, whose address is Earnscliffe, Ottawa.

By way of preliminary to answering this question, the following statement is illuminating:

The debate on the Quebec Resolutions, October 10, 1864, in the Legislature of Upper and Lower Canada ended by ratification March 13th, 1865. Immediately the Imperial Parliament countered the move by enacting the Colonial laws Validity Act, June 29th, 1865, to show the Colonists that it was they and not the Colonial Legislature that had the power to govern. Revising the draft and briefing the Quebec Resolutions in the form of a Bill, called the Kingdom of Canada papers, John A. MacDonald and delegates from Canada, Nova Scotia and New Brunswick, presented these to the Earl of Carnarvon, Secretary for the Colonies, December 26th, 1866. Instead of bluntly refusing, the Earl of Carnarvon delegated Lord Thring parliamentary Secretary to the Treasury to draft a Bill to conform as much as possible to the Kingdom of Canada draft-but to nullify its purpose by not disturbing in any particular the authority of the Governor General to act as a dictator. John A. MacDonald got a wife, a title, and a membership in His Majesty’s Imperial Privy Council and Canada got the British North America Act, (Letters Patent).

1767: The Island of St. John was granted to proprietors and re-named “Prince Edward Island”.

1770: Prince Edward Island was separated from Nova Scotia. A Constitution was granted to Walter Patterson. This is the only constitution document in the Archives of Prince Edward Island.

Mr. Barr: Under these circumstances, Mr. Smith, what would your recommendation be to the Canadian people in order to remove this anomaly and establish a Government that would be the sovereign authority?

Mr. Smith:  In my opinion, the logical solution is a Federal Union of the Provinces. It is illogical for us to decry disunity in Canada before a union has been achieved. 

The definition of a Federal Union, as given in the Law Dictionary, is a “union of sovereign states mutually adopting a Constitution.” 

There can be no coercion in the construction of a mutually adopted Constitution. It is ony by co-operating that Nationhood can be made a reality. Lord Campbell, Leader of the Opposition in the House of Lords when the Earl of Carnarvon Introduced the Bill -

The British North America Act- said:

“It would scarcely be possible to break the artificial unity we now propose to organize”.

(Hansard’s Parliamentary Debates, Vol. 185. p. 1016)

The Colonies composing Canada were stuck together by the British North America Act. Nova Scotia objected in the strongest terms. The Colony appointed a delegation, headed by Joseph Howe, to present a petition to Parliament, signed by 30,000 voters of Nova Scotia: “That Nova Scotia be relieved of this measure, or that a commission of inquiry be appointed”. John Bright presented this petition to the House of Commons. It was rejected, the vote being 183 to 87. Nova Scotia was compelled to become a member of the United Colony. Howe, in his departing speech, said: “We go home to share the perils of our native land in whose service we consider it an honour to labour and whose fortunes in this darkest hour of her history it would be cowardice to desert”.   To “adhere” does not mean to “cohere”.

To be stuck together may have been the best expedient at the time. Today the position is intolerable. Each Province of Canada is a sovereign state. 

No sovereign state can coerce another sovereign state except by force of arms. What does the future hold? 

Is Canada to become an armed camp, each at the other’s throat? Or can we unite to create a federal Union, mutually adopting a Constitution, each respecting the autonomous powers the others desire to retain? This is the question which must be answered. 

Sovereignty and the ownership of land go hand in hand.

In this respect I would like to draw a distinction between POSSESSION and OWNERSHIP. The slave may possess his Physical body which his master owns. Colonists may possess lands which are owned by some Sovereign state. They are in the position of share-croppers. As there is no intermediate state between that of a Free Man and a Slave, neither is there an intermediate state between a Colony and a Sovereign State. They are either one or the other. 

If Canada were not a Colony in 1931, Section 11 of the Statute of Westminster would be superfluous.

Section 11 reads as follows;

“Notwithstanding anything in the Interpretations Act 1889, the expression “Colony” shall not in any Act by the parliament of the United Kingdom passed after the commencement of this Act include a Dominion or any Province or State forming part of a Dominion.”

This is in unequivocal terms-states that after December 11th, 1931, each Province
of Canada, previously cognized as Colonies are now recognized as Sovereign States. 

They are no longer share-croppers, nor do they pay any lease to the Crown in Chancery or Department of Lands of Great Britain. They own the land. Only the owner of land can make the law of the land. 

Sovereignty and the ownership of land go hand in hand. 

This is the most important axiom to be learned by the student of constitutional and International law. Although all property within the boundaries of a Province belongs to the Province and is possessed by the Provinces, there is nothing in the Act to intimate that the Province owns the land.

From the signing of the Peace of Paris, 1763, whereby France ceded the land to the British, Britain owned the land, until Britain ceded the land to each respective Province in the Statute of Westminster, 1931. 

Possibly I can explain this by an analogy with which you are familiar. The Gypsies or Romanies have roamed Europe for a thousand years. As a people they do not own property. As a nation they have no sovereign rights The self-styled Jews also claim to be a Nation. In support of this contention, they publish a magazine called “The Nation”. As a people they do not own property or land. As a Nation they have no Sovereign rights. 

As a consequence, they have become the football of every nation which owns land. The ownership of land entails responsibility. Responsibility is the basis of all law, whether such law be civil, criminal, corporation, municipal, or International. This is the reason that although the Dominion could and did draft laws, it was only the owner (by delegated power to Governor General) that could enact it. The same held good in the province. The Provincial legislature could draft laws, but it was only the Lieutenant Governor (by delegated power from the Governor General) who could enact it. No power has been conferred or granted by the previous owner of the land of Canada to any person to enact laws, pass Orders-in-Council, administer affairs in connection with or to exercise authority over anything in Canada since 1931. 

They naturally expected the owners to look after their own property. 

It is admitted that Canada needs a strong central government. 

The question is-how can this be consummated? It is obvious that the only alternative is an agreement signed by the owners of the land, the Provinces. If the sovereign states of England and Scotland had refused to sign the Treaty of Union January 14th, 1707, there would be no Great Britain. If it was a good thing for England and Scotland to sign an agreement, or for the United States, Mexico, Australia and
South Africa, would it not be wise for Canada to follow their example? Such an agreement, signed by the representatives of the Provinces, should grant to the Central Government all essential services, with the powers of taxation to defray the expenses of such services. At the same time the rights of the Provinces should be safe guarded. No encroachment should be tolerated which would interfere with the powers and rights reserved by the Provinces. Each government must stay within its own field. 

Such agreement should be free of ambiguity or any party considerations. Being fair to all, it will not overlook the rights of any. It is hardly fair for our public men to decry disunity in Canada before the first step towards unity has been taken. Our first step should be the convening of an Inter-Provincial Conference, where “Articles of Confederation” can be discussed. This need not be a lengthy document. An agreement to grant to a Central Government approximately the same powers as are contained in Section 91 of the B. N. A. act.

After signing this agreement, which would constitute a provisional government, measures should be taken for convening a Constitutional Assembly. To create a Constitution, it must be finally ratified by the electorate of the Provinces. As it will doubtless be conceded that an agreement is indispensable, I am handing you a draft of the “Articles of Confederation” and will predict that the names of the men whose signatures are appended will be re-echoed down the Corridors of Time by countless generations yet unborn, as long as the rivers flow and the grasses grow.

ARTICLES OF CONFEDERATION

WHEREAS the best interests and present and future prosperity of British North America will be promoted by a Federal Union. We, the undersigned, Premiers of the Provinces of Canada in conference assembled, in order to provide a means to implement this resolution do hereby Constitute a provincial Government composed of two appointed representatives from each Province to provide for the Peace, Order, and Good Government of Canada with the power to call an election which shall be held within sixty days after a Constitution has been created by a Conference and ratified by the electorate of each and all the provinces.

The Provisional Government shall have full power and shall exercise authority over the following functions:

The Public Debt and Property. The Regulation of Trade and Commerce. The Raising of Money by any Mode or System of Indirect Taxation. Postal Service. Census and Statistics. Militia, Military, and Naval Service and Defense. the fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada.
Beacons, Buoys, Lighthouses and Sable Island. Navigation and Shipping. Quarantine and the Establishment and Maintenance of Marine Hospitals. Sea Coast, and Inland Fisheries. Interprovincial and International means of Transportation and Communication. Bank of Canada and issuance of Coinage. Weights and Measures. Billso fo Exchange and promissory Notes. legal tender backed by gold. Bankruptcy and Insolvency. Patents of Invention and Discovery. Coyprights. Indians and Land reserved for Indians. Naturalization and Aliens. Advisors to His Majesty. The Criminal Law. The Establishment Maintenance and Management of Penitentiaries. The appointment of Superior, District and County Court Judges. The Appointing and Despatching of Commissioners and Ambassadors to foreign Countries. the governing and developing of areas or natural resources in Canada outside the boundaries of any Province. Radio, Wireless Stations and Cables. Aeroplanes and Air Transportation. Immigration and Customs. The production and reduction of Radium, Uranium and rare metals. The exportation or importation of any Commodity. External affairs and Great Seal of Canada.

Signed for the Province of

British Columbia ____________________________

Alberta ____________________________________

Saskatchewan _____________________________

Manitoba ____________________________________