What's left of the law
If I hear or read another suggestion that I can protect my own privacy by turning something off, I’m going to scream. It’s a false promise; you can’t protect yourself unless everyone else protects you too. Plus it solves the wrong problem. Things like facial identification aren’t either good or bad wholesale – they’re good or bad depending on how they’re used and the safeguards in place so that they are accurate and not discriminatory. I can’t cure that by clicking a box somewhere. Who’s protecting the public interest?
If I hear another judge telling us that someone has the right to go to work or anywhere else without taking steps to protect the public health or safety, I’m going to throw up. It has long been the law that you could refuse to do things that violated your religious principles but not that you could do things that threatened others because of them. You may remember the big hullabaloo about Scalia saying that a legal requirement was obligatory if it were generally applicable to everyone without regard to their religious beliefs. What was objectionable was that Scalia supported legal rules without even bothering with the public interest, with whether there was a threat to others.
And your employer has only been required to find a “reasonabl[e] accommodat[ion]” to satisfy your concerns without fouling up the office. But if no “reasonabl[e] accommodate[ion]” was available, you couldn’t inflict your religious views on your company or agency. You don’t get to screw everyone else.
Now lawyers, judges and public officials are all over the lot with many telling us that religion overrides the public interest – not just that we have the right to our beliefs and to practices that don’t affect the public interest but that we can override what is important for the public. What the heck happened to public interest?
In other situations – like collecting our digital data – we’re told everyone can do whatever they want for whatever reason, religious or not. That’s described as “private ordering.” Private is a misnomer – it’s authoritarian – because you and I can’t deal with it. We’re bound to contracts we couldn’t read because we couldn’t see them before we bought the product, or because we couldn’t understand them anyway even if we could physically read them, or because they were so long and elaborate that we gave up without taking the time to read and figure them out. That kind of contract has a place between large players with expensive lawyers and lots at stake, but saying you signed it so you are bound to it, is just telling you that you have no agency in this world, no power to protect yourself because the big shots have decided how you are going to live – or die – and the law couldn’t care less.
When I went to law school – in the last millennium to be sure – the most popular judge in the legal firmament was Benjamin N. Cardozo, who had been Chief Judge of the New York Court of Appeals before being appointed to the U.S. Supreme Court. He wrote a book about his legal philosophy called The Nature of the Judicial Process, in which he wrote “The final cause of law is the welfare of society. The rule that misses its aim cannot permanently justify its existence.” There is ambiguity in Cardozo’s view but nobility in its purpose. I daily mourn the loss of that understanding of law and its value.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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