Civilization, Whither Art Thou

Commentary on Society and Civilization

Follow-up on Hobby Lobby Post

My father sent me a letter about the last post discussing Burwell v. Hobby Lobby.  With his 30+ years in law he helped elucidate the landscape of law surrounding the U.S. Supreme Court's opinion and also weighed in on a few issues.  The most crucial fact he gave to me concerned the U.S. Supreme Court's opinion on Heart of Atlanta Motel Inc. v. United States 379 U.S. 241 (1964).  The American Bar Association does a great job explaining the central arguments and the outcome of the case here.  As the ABA states, the question is "under the Constitution, can Congress pass a law preventing private businesses from discriminating against people because of their race or color?"  The court's opinion was unanimous in saying, yes, Congress can prevent private businesses from discriminating against people, especially private businesses that participate in interstate commerce.  The opinion of the court went on to say that Congress has the power to regulate and prevent discrimination not just with interstate commerce but within a state as well.  

It would seem, as my father points out, and I agree, that Atlanta has been at least partially overturned.  In Atlanta the issue was whether or not Congress could force a private business, in this case a motel, to serve African Americans.  The owner of the motel said that the Congress had overstepped its authority by telling him who he could and could not serve.  The outcome of the case was unanimous, as mentioned above, and the opinion served to justify regulation prohibiting discriminatory practices by private business.  This was part of a trend in law going back to the Civil War or further.  The Fourteenth Amendment, passed in 1868, made it so that states could not discriminate against citizens.  But in the 1880s the courts refused to restrict private businesses.  Thus, early in American history slavery was legal and states had the authority to discriminate.  As time went on, they were limited in that capacity.  Then the private business question was raised, and so on.  Reading through some of the explanations and looking at the case itself I feel the following paragraph from the ABA discussing the case is critical to its understanding:

"The Fourteenth Amendment prohibited discrimination by states, thus limiting their power, but what about discrimination by private businesses like restaurants and hotels? Congress passed a law in 1875 that outlawed such discrimination. The Civil Rights Act of 1875 made it a crime to deny to anyone the "full and equal enjoyment" of railways and other transportation. It also required equal treatment in hotels, theaters and other places of public amusement."

Therefore, it should be understood that throughout American history the laws have been moving ever closer to trying to create a society where discrimination does not exist, while balancing the power of Congress.  Today, however, in Burwell v. Hobby Lobby the court has slid backwards by taking power away from Congress.  They have said that an private business participating in interstate commerce cannot be regulated when it violates the religious beliefs of that corporation, as long as the corporation isn't hurting anyone.  (If they were hurting someone by violating the law Congress would have a compelling reason to burden them.)  With this in mind, the question becomes, can an owner of a corporation participating in interstate commerce not hire a potential employee because they are African American, if they feel it violates their religious beliefs?  Historically, the Christian Bible was used to justify slavery and the inferiority of other "races."  I fail to see how that isn't religious in nature.  How does Burwell v. Hobby Lobby and the Restoration of Religious Freedom Act reconcile this?

But I want to change the focus of this post and examine something else my father said that is of particular interest to me.  Below is the paragraph I wish to discuss:

"Also, many women use the hormones for things other than birth control. [Many women]...for example...[take] so called birth control pills as a way to control harsh and debilitating periods...There are other medical uses for these hormones than just birth control is the point. These items should be referred to generically as "hormone therapy" not birth control. So because of one medical effect, prevention of pregnancy, versus other medical effects, these people get to opt out. Furthermore, if the reason they are offended is because they think using birth control increases promiscuity, then they are trying to control behavior of individuals that is absolutely protected by the right of privacy. They don't get to tell me what to do because of their "religious" sensibilities. That is also part of "religious freedom", the right to practice any religion or none at all."

My father makes some great points here, but I want to explore the argument at the very beginning of the paragraph, that some women use birth control for reasons other than control pregnancy.  The argument is very logical.  And arguments like it have been applied to legalization of marijuana, gay rights, and even civil rights.  The argumentation is the same in all cases, a logical appeal to what is natural or an alternative use are used to try and sway the opponent.  For example, with marijuana proponents argue that cannabis has medicinal properties and thus should be legalized.  For gay rights proponents argue that "being gay" isn't a choice, you're born that way, so that population should have equal protection under the law.  With civil rights proponents argue that African Americans are scientifically (read here IQ, genetics, etc.) the same as Caucasians and thus should have equal protection under the law.  And here with Hobby an argument again for alternative use.

The problem I have with this line of reasoning is that it shouldn't matter whether or not there are alternative uses for something, or whether or not someone is "born that way" or not, citizens should simply have equal protection under the law to live out their lives as they choose without interference from outside parties including Congress and private business -- with the caveat that they cannot break laws already set in place to protect others.  For example, if someone wants to drink alcohol they should be able to; however, if they choose to drive and drink alcohol they have endangered the lives of others and there should real consequences.  A private business should not be able to tell certain classes of people, say Jewish or African American individuals, that they cannot buy alcohol simply because they are Jewish or African American.  Further, an employer should not be able to tell a Jewish individual that they will be fired for having a glass of wine at Sabbath dinner in their own home, simply because in their religion they view alcohol as a sin.  What they do in their private life should be their private life.

What Hobby says, though, to me, is that employers can discriminate against their employees.  If Hobby Lobby can opt out of following a federal regulation because it, a corporation, has moral reservations about the federal regulation, then why can't they opt out of the Civil Rights Act of 1875?  Further, why couldn't a state, another fictional entity, opt out of the Fourteenth Amendment due to religious concerns?  This is scary.  And what's more it calls back ideology of legalized slavery, child labor, and refusing to let women vote.  No amount of arguing that women are equally intelligent as men will change an individual's mind that women should have the right to vote if they in fact believe that a divine being doesn't want women to vote.  Furthermore, we shouldn't need a logical scientific argument to do the right thing.  In the multicultural framework of which today's society squarely resides, arguing that one culture or even worse a subset of one culture be given dominion in law is evil.

As a biologist I am reminded of the concept of emergent properties.  The concept of emergence, in biology, states that if we put some components together we get a bigger thing with new properties.  Those new properties 'emerged' out of the smaller components.  A classic example is of a bicycle.  If you throw all the parts of a bicycle on the floor you do not in fact have a bicycle and those individual parts do not hold the properties of a bicycle, such as having the ability to carry you around town.  However, if we put the parts together in the right way (and in fact there aren't a lot of ways they can fit together) we get a bicycle and the properties we associate with a bicycle emerge.  A more complex example is the emergent theory of consciousness.  The idea states, in simple terms, that if you put all the parts of the human brain together, consciousness emerges.  Yet, consciousness is then, by definition, more than the sum of its parts.  Therefore, we can't point to any part of the brain where consciousness resides.  This idea has been around for some time, a good place to start if you are interested is here.  

I want to take this last paragraph, elaborate on it, and apply that to Hobby.  I argue here that our (and other mammal) brains are wired for morality.  We can watch on MRI's as people try and make morality based decisions and we see patterns.  Further, I argue that when you place a human in a multicultural society where they interact on a personal level with individuals who come from a different background that a new sort of morality emerges.  One that is unique to the modern age.  Even just a hundred years ago there was nothing even remotely close to the confluence of culture that we see today.  The internet, flight, phones, and suburbia have forced us to meet others who are not like us.  There are at least two reactions to this: fear and acceptance.  For if you accept others as your equal then you accept that your way of life is not the only correct way to live.  Many then feel paralyzed by thoughts such as: what if I'm wrong or what if there is no point?  This existential crisis leads to segregation of ideas and a sort of closed off consciousness to others who don't fit in that paradigm.  

This is how I define evil.  Evil begins by fearing others who are different than you.  It is the cause of much suffering in the world.  Many have tried to argue that their actions are not out of fear, but instead they are out of love.  For example, in 1927 the landmark case Buck v. Bell was decided and Ms. Buck was forcibly sterilized against her will (redundancy intended).  In that decision, 274 U.S. 200 (1927), Justice Oliver Wendell Holmes, Jr., states infamously that, "Three generations of imbeciles are enough."  Justice Holmes argues that if we don't rid society of the "feeble-minded" then society will face danger.  Others followed his lead and argued that if we didn't sterilize now, we would have to euthanize later.  You may see where this is going.  In 1936 the Nazi party posted this flier around Germany.

It says, "We do not stand alone," along the top.  On the shield it says, "Law for the Prevention of Diseased Offspring," otherwise known as the "Sterilization Law."  It allowed Germany to forcibly sterilize individuals who were deemed unfit to reproduce.  Around the sides of the poster are flags of other major countries.  Below each flag is a date, that date tells the year that country enacted compulsory sterilization laws -- the flag of the USA has the date 1907 underneath it which is by far the earliest.  Fear of others who are different from the majority led to this.  This led to the holocaust.  Now, I am in no way saying that the United States of American is responsible for the holocaust, but I cannot see how we, historically speaking at least, can shirk all moral responsibility in the matter.

I want to now return to Hobby and an emergent theory of morality.  There is another option to fear in the new emergent morality and that is acceptance.  Had the U.S. Supreme Court in the years 1924-1927 sincerely looked at what was going on they would have seen that the words that were being used, such as "feeble-minded," "defective," and "imbecile" had very little meaning to them.  Further that those who were found to be "different" and thus "defective" could function perfectly well in society.  Justice Holmes even remarks that these individuals could be released into society, and further that they could benefit society, but that he and others fear they will have children who are equally different.  That fear led the USA to sterilize tens of thousands of its citizens, many of whom were likely just not well educated and poor.  

Today there is a fear that in accepting other's religious beliefs that Christianity will be eroded to the point of being obsolete.  A push from the religious right has come in the form of attacks on laws that specifically protect individuals rights to free exercise of religion and reverse them in a way that allows the powerful to control the behavior of the weak.  In this case, a powerful corporation is given the right to in essence tell their employees it does not agree with them having the choice to family planning.  Further, it tells the country that corporations have the right to tell workers what they can and can't do.  Any argument against this court's decision must be made, in my opinion, along the lines of a unified multicultural morality rather than an argument stemming from alternative use or science. 

To close, we as a society need to begin to understand that there exists much more gray area than we previously thought.  Just as skin tone is gradated from albino the near black between individuals so is sexuality, belief in a divine being, or any number of other facets of being human.  Going further, just as skin tone is gradated in a single individual over a given lifetime, so are feelings on sexuality, religious beliefs, and everything else that makes us who we are.  To make the world black and white, as the court has done with Hobby, is to put us on a path towards fear and hatred.  For if we allow one corporation to dictate a behavior, then we can allow another; and if we go down that slippery slope, then whose to say what behavior will be next.   

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