Law is too small to contain social justice

John Winstead mug

John Winstead

Editor’s note: Winstead also serves as a Student Government Association senator. 


Religious Freedom Restoration legislation is the latest tactic the right is using to overturn LGBT social progress. The Advocate reported that Kentucky’s Senate recently approved a so-called “license to discriminate bill” that would allow individuals and businesses to deny services to LGBT people without being penalized under local antidiscrimination ordinances.

Some on the left have attacked this bill and others like it on the basis that they are unconstitutional. However, I argue that attacking this issue from a position of law is misguided. 

In my opinion, the law is not abstract, nor is the U.S. Constitution inherently good. The Constitution condoned 89 years of slavery in the U.S., and common law condoned 156 years of slavery before that. If history demonstrates anything, it is that the law is not the arbiter of morality but a parody of it. Legal justification should be regarded as the lowest rationale for a society’s state of affairs, and yet the law is always our first form of recourse in adjudicating differences in public policy. 

That is the problem. 

Why do we turn to the law to legitimize our politics when the law bears no immediate relation to justice?

I do not need to turn to the International Court of Justice to know that genocide is immoral. I do not need to turn to the U.S. Constitution to know that slavery is wrong. I do not need the law to know what is justice.

I am writing none of this to denounce the social justice work others are doing in the realm of law. It is good and necessary work. Many peoples’ lives and livelihoods depend on that work. I critique the political trajectory, not tactics. Engaging with the law is fine in the short term, but true liberation from oppression will not come from the law. As history bears out, true liberation has always and will always come about in spite of the law, not with it.

Religious Freedom Restoration bills are condemnable on the basis that they arbitrarily deny services and resources to people who need them, not because these bills are unconstitutional. Kentucky’s left and those concerned with social justice should keep this critique in mind as they fight against the latest conservative triage. Ours is a cause of social justice, not social litigation, and we should never forget that.