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 21st 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 19th 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
