“Supreme Court tries to create certainty,” The Colorado Springs Business Journal, July 10-16, 2015, 21.

Under Conditions of Certainty

As the Supreme Court ended its 2014-15 session, several of its rulings are of historical significance. But what is most important to the business community is the fact that uncertainty has been replaced with certainty.

It is certain that the Affordable Care Act is here to stay. One can love or hate it, one can find flaws with its philosophical principles or implementation, but for the second time its constitutionality has been affirmed. Congress, if you want to eliminate it, come up with an alternative. How about universal health care?

Universal health care isn’t framed in terms of fairness because the mythology of individual freedom of choice trumps it. What choice? To be without health insurance? To run up costs when the only choice is the Emergency Room?

As for the recognition that marriage is a constitutional right, and as such extends to non-heterosexual couples, recall our Proposition 2 that was approved in Colorado by a 53% majority (1992). In 1996, the Supreme Court (Romer v Evans) found that the amendment, preventing protected status based on homosexuality or bisexuality, violated the Equal Protection Clause.

 

Legal victories, though, don’t tell the whole story. Just because discrimination against the LGBT community is illegal doesn’t mean is has ceased to exist. Yes, the business community has overall been supportive, and yes, even critics will have to change benefit policies, but will all employees be treated equally?

Just as the abolition of slavery was both about the civil rights of African-Americans and how our cultural norms ought to change, so is the case with same-sex marriage. For those who want to wave the Bible as the final arbiter of morality, beware of what you ask for. If you haven’t read it lately, you may be surprised by instances of sanctioned immorality.

But should a very personal event—the expression of one’s love—be part of our legal system? It’s worth questioning if the only way to ensure the protection of rights associated with love is by legal means. Laws can allow for tax provisions and hospital visitations, inheritance and employment benefits without the state regulating the affairs of the heart. Should the state also tell us how to express our love?  

If something is legal, abortion after Roe v Wade of 1973, is it necessarily beyond dispute? The law, after all, is supposed to express the moral standards of society (and not the other way around). The law comes both logically and chronologically after a community agrees on its social conventions and moral norms.  

And since the Supreme Court is made up of nine life-tenured jurists, five men and four women, six Catholics and three Jews, how representative is it? Perhaps the whole point of our “checks and balances” republican system of governance is that the judicial branch shall not be representative and thereby also be above the fray of public opinion. But is it? Were the justices bending to the cultural sea of change in regards to the LGBT community? Shouldn’t their decisions be culturally “blind”? 

We are after all in the 21^st century. Though women still earn less than men when performing the same jobs, though women are still under-represented among our elected officials and in corporate boardrooms (see the latest Fortune Magazine issue on the top 100 women in America), we still believe in equality. Note that the most important educational institutions in town are headed by women—Air Force Academy, Colorado College, and UCCS. 

Perhaps the question of equality still makes some people uncomfortable when juxtaposed against the question of liberty. But our commitment to freedom (of choice and religion, speech and assembly) is intimately tied to equality, as seen in the latest Supreme Court’s decision. If my choice is hindered because I’m considered different enough not to warrant equal protection of the law, my freedom is compromised. 

Our legal system has evolved. What courts allowed for in the 19^th century would never be allowed today: for example, ideas about education (segregation under the principle of separate but equal, Plessy v Ferguson of 1896) have been reversed (Brown v Board of Education in 1954). Likewise, sodomy laws were eventually deemed unconstitutional (Lawrence v Texas of 2003). Supreme Court decisions take note of cultural changes.

The business world shuns the risks associated with uncertainty. It’s difficult to plan if you don’t know what to expect. As one study showed, CEOs of international conglomerates prefer to do business in China—where an authoritarian one-party system controls all activities—than in democracies, such as the USA—where regulations keep on changing.

If there was doubt about marriage equality, it has been replaced with certainty. Who knows, federal marijuana laws might be next.

Raphael Sassower is professor of philosophy at UCCS. He can be reached at rsassower@gmail.com See previous articles at sassower.blogspot.com