This weekend, as I mourned along with the rest of the world Justice Ruth Bader Ginsburg’s passing, I watched the movie “On the Basis of Sex.” Twice. Grieving the loss of this intelligent, passionate, and articulate champion for human rights and shatterer of glass ceilings, I reflected on how best to honor such a person.
And I found this statement by Bruce Lindner in a Facebook post: “Ruth Bader Ginsburg led a life of constantly swimming upstream. Everything from institutionalized sexism, misogyny, ignorance, bigotry, anti-Semitism, and for her final curtain, five bouts with various types of cancer.” Generally, the best way to honor a person’s memory is not to get mired in grief and defeatism but to carry on the work which she or he started. Institutionalized sexism, misogyny, ignorance, bigotry, and anti-Semitism still exist; RBG is gone, so it’s up to you and me to continue the work of abolishing prejudice and removing obstacles to human dignity and progress.
In the movie, Ruth’s first opportunity to argue a case in court came when she and her husband Martin acted as co-counsels in an appeals case for a defendant who was discriminated against because he was a bachelor who was caring for his invalid mother. A lower court had convicted him of cheating on his taxes, and Ruth and Martin represented him in the appeal; according to Smithsonian Magazine, “The scene plays out in the same way the Ginsburgs have recounted it.”
In her final argument to the three-judge panel, Ruth says, “We’re not asking you to change the country. That’s already happened without any court’s permission. We’re asking you to protect the right of the country to change.” Her statement articulates a fact: people change, cultures change, mores and norms change. That change happens without legal approval, but the legal system can muck up the process by forcing citizens to live according to outdated norms and mores, institutionalized in outdated laws.
The United States Constitution has been seen as a model among documents of its kind, because the writers–our country’s founders–were astute thinkers who created a government framework that has remained relevant for well over 200 years. Since it went into effect in 1789, our constitution has been amended 27 times. Not bad for 231 years! Yet even as well crafted as the original document is, it has needed those 27 updates, and the laws for which it provides the framework have also had to be updated. The urgency to fix laws that no longer apply or that have become impediments is what drove RBG throughout her career.
In that same closing rebuttal, the movie Ruth argues, “There are 178 laws that differentiate on the basis of sex. . . . They’re obstacles to our children’s aspirations. . . . We all must take these laws on, one by one, for as long as it takes, for [our children’s] sakes.”
Justice Ruth Bader Ginsburg’s words and ideals echo for me the words of two of my other favorite thinkers and writers: Henry David Thoreau and Martin Luther King Jr. Both Thoreau and King acknowledged the divide between law and morality, between just laws and unjust laws. Slavery was immoral but legal; assisting slaves to escape was illegal but moral. Jim Crow laws were legal but immoral; defying those laws was illegal but moral. Imprisoning and murdering Jewish people in Nazi Germany was legal but immoral; helping Jewish people avoid capture and arrest was illegal but moral. Kidnapping children at our border and imprisoning them is legal but immoral; any effort by concerned citizens to rescue those children and attempt to reunite them with their families would be moral but illegal.
In Henry David Thoreau’s 1849 essay “Civil Disobedience” (full title, “Resistance to Civil Government”), Thoreau defends not paying his poll tax for six years in protest against slavery and the U.S. declaration of war against Mexico, asserting that he could not in good conscience support a government that supported the immoral treatment of his fellow humans.
He argues that, although government is necessary, it is the character of individual citizens that makes this country great:
“It [our government] is excellent, we must all allow. Yet this government never of itself furthered any enterprise . . . It does not keep the country free. It does not settle the West. It does not educate. The character inherent in the American people has done all that has been accomplished; and it would have done somewhat more, if the government had not sometimes got in its way.”
Like RBG, Thoreau believed in citizens’ right to examine the laws by which they live and to challenge those laws that impede rather than facilitate our progress as a people. He says, “Unlike those who call themselves no-government men, I ask for, not at once no government, but at once a better government.” Like RBG, he believed that sometimes laws need to be fixed, because legalized injustice should not be allowed to stand.
He begins the central point of his essay with two probing questions:
“Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience, then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume, is to do at any time what I think right. . . . Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice.”
In other words, what good is a conscience if you can’t use it? Respect for what’s right should supersede respect for what’s legal. Sometimes, following existing laws can make a person a perpetrator of injustice. In our own time, think of border agents who may believe the child-separation policy is morally wrong. They must choose between obeying the law or obeying their consciences. Obeying one’s conscience, of course, can be costly; in this case, it could mean either resigning from their jobs or being fired for non-compliance. Either way, they would lose the means of support for themselves and their families. Sadly, following one’s conscience is a lofty ideal which may seem overwhelmingly impractical for many.
According to Thoreau, “Unjust laws exist.” The only question we must each ask ourselves is how we will respond to those laws: “Shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?” Rosa Parks obeyed the laws until she felt compelled to take a stand and draw the world’s attention to the law which unjustly robbed her of her human dignity by mandating where she could legally sit on a bus.
Thoreau was neither an anarchist nor a rabble rouser. He allows for tolerating certain injustices when the remedy may be worse than the evil. “But if [the law] is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law.” In summary, he says, “What I have to do is to see . . . that I do not lend myself to the wrong which I condemn.” Hypocrisy and violating the principles of one’s conscience are, in other words, graver wrongs than breaking a law which requires perpetrating an injustice on a fellow human.
Martin Luther King Jr. distinguishes between just laws and unjust laws in his famous “Letter from a Birmingham Jail.” He begins:
“One may well ask: ‘How can you advocate breaking some laws and obeying others?’ The answer is found in the fact that there are two types of laws: There are just and there are unjust laws. I would agree with Saint Augustine that ‘An unjust law is no law at all.’”
Here’s how he distinguishes between the two types of laws:
“A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of Saint Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law.”
He adds:
“Let us turn to a more concrete example of just and unjust laws. An unjust law is a code that a majority inflicts on a minority that is not binding on itself. This is difference made legal. On the other hand a just law is a code that a majority compels a minority to follow that it is willing to follow itself. This is sameness made legal.”
In his essay “Three Ways of Meeting Oppression,” King says many oppressed people simply acquiesce to their condition because fighting against it is too hard and too exhausting. Then he cautions, “But this is not the way out. To accept passively an unjust system is to cooperate with that system; thereby the oppressed become as evil as the oppressor. Non-cooperation with evil is as much a moral obligation as is cooperation with good.” Some of our Republican senators should heed that precept as they eagerly cooperate with the evil rush to ramrod through a replacement for Justice Ginsburg after many people have already cast their ballots for the president they want to fill her seat.
Civil disobedience, as advocated by Henry David Thoreau, Martin Luther King Jr., Mahatma Gandhi, and others, is the act of identifying laws that are unjust, immoral, and oppressive and refusing obedience to those laws. Obviously, careful distinctions must be made. An unjust law is not an inconvenient or annoying law; it is a law which requires you and me to act in an immoral way, to become an oppressor of a fellow human or group of fellow humans.
The mandate to wear a mask to prevent transmission of a deadly disease is not an unjust law, and there is no moral ground on which to refuse obedience. There are only ignorance, selfishness, and disrespect. Wearing a mask may be inconvenient and perhaps annoying, but it does not, in Thoreau’s words, require you to be the agent of injustice to another person; it does not violate, in King’s words, the moral law or the law of God. The law’s purpose is to save your life, not to oppress you. If Thoreau and King were alive today, they might say “This is a stupid hill to die on.”
What HDT, MLK, and RBG all–by their writings and by their examples–encouraged us to do is be active citizens. Passively accepting laws, just because they’re laws, is cooperation with evil if the law is unjust. Some laws, like slavery and Jim Crow, were never just or defensible; others, like those RBG fought against, were based on outdated norms and mores. The duty of active citizens is to use our voices and our influence to fight real injustice, not to waste our time and our voices whining about wearing a mask, not being able to get a haircut or manicure, or having to wait in line to enter Trader Joe’s and Costco during a pandemic.
The law is not sacrosanct. It is a living organism; it must grow and change to keep pace with change in the social order. Thoreau and King allowed for breaking unjust laws; Notorious RBG used the power of her position to change many of the unjust laws which robbed certain people of their human dignity and required humans to be agents of injustice to other humans. Now that mantle has been passed to each of us:
“Fight for the things that you care about, but do it in a way that will lead others to join you.”
Of those “178 laws that differentiate on the basis of sex,” that are “obstacles to our children’s aspirations,” how many still exist? How many others exist? As RBG taught us, “We all must take these laws on, one by one, for as long as it takes, for [our children’s] sakes.” Call it dissent, call it civil disobedience, just do it.
Each of us has both a need to make a living and an obligation to contribute toward a world that’s worth living in. Justice Ruth Bader Ginsburg said, “I’ve gotten much more satisfaction for the things that I’ve done for which I was not paid.” She left the world a better place than she found it; let the same be said of us who carry on her legacy.