It appears that Indiana has realized that discriminatory laws are unpopular with the business community, and is backpedalling post-haste to clarify that, despite its ongoing fight against same sex marriage rights, the rhetoric of the law’s sponsors, and the invitation of a series of anti-gay bigots to the signing ceremony, the state’s Religious Freedom Restoration Act (RFRA) was never intended to allow for discrimination against the LGBT community.
The “fix” is far from perfect as it still, like all RFRAs, leaves the state in a position where it prioritizes religious objections to a law over and above other objections. Take zoning laws, for instance. A church may decide it is part of its Christian duty to establish a soup kitchen and feed the homeless. If local zoning laws prohibit such an undertaking, RFRA (or the similar Religious Land Use and Institutionalized Persons Act (RLUIPA)) can be used to grant a religious exemption, permitting the food service. On the other hand, an organized group of socialists who believe that feeding the poor is mandated by their political beliefs have no such avenue to avoid zoning laws. Religion is placed on a pedestal by such laws, which is why CFI has always opposed them. But while all RFRAs are bad, some RFRAs are worse than others, and the Indiana one that initially passed was very bad indeed. We should therefore be grateful for the amendment as a mitigation of some of the harm this law could cause.
The backlash was rapid, and caught everyone by surprise, especially secularists who have been campaigning against RFRA laws for decades. The mobilization of opposition has been impressive, and now even Arkansas sent its RFRA, similar to and passed soon after the Indiana law, back for clarifying language. Of course, this opposition feeds straight into the Religious Right’s persecution fantasy. Customers deciding not to frequent a pizza parlor that publicly stated it would refuse to cater a same sex marriage is called assailing their freedom, as if people have a duty to spend their money where Fox News determines they should. Indeed, as a result of this “persecution,” thousands of people have contributed money to a crowd sourced appeal for the poor, oppressed pizzeria owners. At time of writing, this campaign has raised almost $850,000, meaning the decision to announce their bigotry has been very profitable indeed for the restaurant owners.
There’s a legal downside to the stunning success and rapid mobilization, though, and it is one that is likely to be seen when the Supreme Court hears the arguments in the same sex marriage cases this Spring. One of the arguments advanced by plaintiffs is that the time has finally arrived for sexual orientation to be viewed by the courts as a suspect classification. In general, courts look at discrimination cases with one of three lenses. For suspect classes (race, religion, national origin, and alienage), a court will apply strict scrutiny, meaning a state must show it has a compelling government interest in discriminating, and that its policy is narrowly tailored to meet that interest, and is the least restrictive means of so doing. For quasi-suspect classes (gender, legitimacy), a court uses intermediate scrutiny, requiring the state to demonstrate a means that is substantially related to furthering an important government interest. For everything else, courts apply the very loose rational basis review, where an action need only be rationally related to a legitimate government interest, real or hypothetical.
Laws that differentially impact the LGBT community have traditionally been examined using rational basis review. Lower courts have, however, begun to use heightened scrutiny, and there is the possibility the Supreme Court will determine in the same sex marriage cases the level of scrutiny that applies one way or another. To qualify as a suspect class, warranting higher scrutiny, a group must meet certain threshold qualifications. The Court has found that a group has been historically discriminated against, or suffered historical prejudice and hostility; that the trait characterizing the group is immutable or highly visible; that the trait does not restrict the group from contributing to society; and that the group is powerless to protect itself through the democratic process.
Gay and lesbian individuals have an immutable trait that has led to historical persecution. There is nothing about an individual’s sexual orientation that determines whether they can or cannot contribute to society. And, traditionally, gays and lesbians have seen large majorities support legislation restricting their rights. But that world is changing. As Indiana just found out, public opinion can mobilize very rapidly in support of their right not to face persecution based on sexual orientation. I guarantee that Justice Scalia, in oral arguments, will ask the lawyers for marriage equality how they can credibly claim gays and lesbians are powerless when organizations as diverse as Walmart and Angie’s List, and NASCAR and AFSCME moved so quickly to encourage Indiana to rethink.
This doesn’t mean I believe that the Supreme Court will rule against marriage equality. My opinions on that haven’t altered, and I expect a clear ruling in favor on that front. The Court may decide based on a fundamental right to marriage, or may decide that the bans on same sex marriage fail even to meet rational basis review. And the Court may well decide that gay individuals still warrant heightened protection under the law. But the stunning success of the coalition against Indiana’s discriminatory law certainly impacts the Supreme Court’s determination of whether sexual orientation will be recognized as a suspect classification for Equal Protection Clause purposes.