Ever since the Indiana legislature passed its version of the Religious Freedom Restoration Act, lawmakers there have been on the defensive. Opposing politicians, businesses, the Chamber of Commerce, conference organizers, artists, and everyday citizens in Indiana and all over the country have attacked the bill for enabling discrimination against gays and lesbians.
In response, legislators who voted for the bill have said they will clarify its language. They have been at pains to argue that the law is not prophylactic. It doesn’t permit anyone to discriminate but instead allows individuals and corporations to use their religious beliefs as a defense against discrimination lawsuits brought by gays and lesbians who claim that they have been unlawfully denied services.
But, as everyone from the New York Times to Indianapolis Mayor Greg Ballard has noted, the exact requirements of the law are not really the issue in the minds of most observers. What matters is that Indiana lawmakers are signaling to the country that their state is not concerned with protecting the civil rights of gays and lesbians. We all know the purpose of the bill, because we all know the context of its passage: same-sex marriage is sweeping the nation, bringing with it the further inclusion of gays and lesbians in basic institutions of civic life. Not everyone is happy about that development, and the aggrieved are using religious-liberty laws to insulate themselves from legal and societal shifts that they despise.
Next month the Supreme Court will hear a consolidated case from plaintiffs challenging same-sex marriage bans in four states. Its decision may determine whether states are constitutionally required to grant marriage licenses to same-sex couples and whether states are similarly required to recognize such licenses granted in other states. You can bet that the justices are paying attention to the Indiana backlash.
The Court cultivates an above-the-fray image. Indeed, some justices—on the current bench, particularly Antonin Scalia, Clarence Thomas, and Samuel Alito—have sought the mantle of originalism, whereby they are not only above the fray but also unbound by time. The promise—or conceit—is that they base their decisions exclusively on the original public meaning of constitutional provisions. But as Pam Karlan argued in these pages, “Constitutional principles interact with social conditions,” and the Court knows it. The public outcry over Indiana’s new law is a reflection of today’s conditions.
In the absence of those conditions, the Court would never have heard United States v. Windsor (2013), challenging the Defense of Marriage Act. In oral arguments in that case, Justice Scalia, as he often does, asked the sort of pointed question that sharpens the stakes of the legal-philosophical issue before the Court. When, he wondered, had it become “unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?”
As an originalist, Scalia hoped to show the incoherence of the civil rights position. Since the Constitution doesn’t say it is illegal for states to ban same-sex marriages, it is not illegal. The matter is closed.
But now the Court is preparing to hear a case that will implicate precisely the Fourteenth Amendment, and the question will be whether its equal protection clause requires that gay couples be allowed to marry. The argument is that if gay couples are barred from marrying then they are also barred from rights gained through marriage. This is a form of discrimination in which the state has no defensible interest because there is no publicly acceptable rationale for it.
Scalia and others on the Court will say that when the Fourteenth Amendment was adopted, same-sex marriage was beyond contemplation, hence it cannot possibly protect the civil rights of same-sex couples. But the nation has changed a great deal since 1868, as the response to Indiana’s law attests. And everyone, including the so-called originalists, realizes that constitutional provisions must be interpreted in light of prevailing contemporary norms.
Consider the difference thirty years made with respect to the Eighth Amendment’s ban on cruel and unusual punishment. In Rhodes v. Chapman (1981), Justice Lewis Powell, writing for the majority, asserted that the deprivations caused by excessive prison crowding “are part of the penalty that criminal offenders pay for their offenses against society” and therefore do not amount to cruel and unusual punishment. Why? Because “conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional.” In 2011, the Court evaluated contemporary standards differently and, in Brown v. Plata, required California to reduce its prison population in order to alleviate cruel and unusual overcrowding.
In that case, the originalists were in the minority. But they have proven susceptible to shifting contemporary standards in other instances. For example, originalists have been open to expanding conceptions of “arms” in Second Amendment cases, blessing the private possession for self-defense and recreation of firearms that the framers of the Constitution could not have envisioned. And in Kyllo v. United States (2001), Justice Scalia relied on an evolving doctrine of privacy to rule that police could not use a thermal imaging device to snoop inside homes without a warrant. “It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology,” Scalia wrote. “The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.” In other words, new social facts need to be considered when deciding what is considered an “unreasonable” search and where the boundaries of privacy’s “realm” lie.
To some, the reliance on contemporary conditions indicates a betrayal of the Constitution. But realism requires us to acknowledge that this is how constitutional interpretation works. Social conditions affected the Court’s reasoning in Brown v. Board of Education (1954), when suddenly the Fourteenth Amendment meant that de jure segregation could not be legal. And no one saw fit to bring Second Amendment cases, such as District of Columbia v. Heller (2008), until national politics had shifted in favor of private gun rights. Heller could not have happened without changing political and social realities.
Likewise, if contemporary standards did not matter, the Court would not be hearing a potentially definitive same-sex marriage case this spring. That is indication enough that the Court is paying attention to the social change surrounding it. It cannot fail to hear the voices arrayed against Indiana’s law. In that respect, atavistic culture-war legislation may end up doing more harm than good from the standpoint of those who would exploit religion to deny civil rights.