1. The law was passed to make discrimination against gays, trans individuals and especially same-sex couples seeking marriage if not easier, to at least seem easier. Anyone claiming otherwise is lying, or being intentionally obtuse. Would Indiana be passing this law without the Hobby Lobby decision or the various court rulings requiring photographers, bakers, and other businesses to provide the same products and services to gay couples that they do to heterosexuals? Yes, you say? Tell me another.
As GLAAD alertly pointed out, Governor Pence was surrounded by anti-gay activists when he signed the bill:
This is res ipsa loquitur, and doesn’t speak well for the Governor’s candor or intelligence.
2. Context matters. The original laws of this sort (the Federal law signed by President Clinton is also called the Religious Freedom Restoration Act) were part of the left’s long range pro-drug strategy, like medical marijuana. It was essentially a hippie law designed to create a slippery slope to recreational drug legalization by allowing fringe religious groups, specifically Native American tribes, to use peyote in tribal ceremonies. Now you understand why Clinton signed the bill.
Oops. Excuse me if I enjoy the spectacle of the clever members of the Church of the Perpetually Stoned—including the ACLU, which once supported such laws as long as they pointed the way to their young lawyers being able to have their Saturday night joints legally but now opposes them—being hoisted on their own petard.
“When the federal government adopted a religious protection act in 1993, same-sex marriage was not on the horizon,” whines the New York Times. Well, competent, well-considered, properly drafted, responsibly passed laws don’t suddenly become unbearable, then fine, then unbearable again with every shift of the cultural winds. The intent of the law was never to protect mainstream religions, but cloaked itself in language that did. It backfired.
3. That being stipulated, the good states need to read their own laws before they start grandstanding. Connecticut Governor Dan Malloy just announced on Twitter that he plans to sign an executive order banning state travel to Indiana in response to its Religious Freedom Restoration Act. Yet Connecticut, hippie enclave and bedroom community of rich, white, liberal New Yorkers that it is, happily jumped on the religious freedom train with a law of its own, one that, as the Federalist points out, makes discrimination on the basis of religion easier than the Hoosier version, which only prohibits the government from substantially burdening religion. Connecticut’s law does not include the word “substantially,” meaning that all government-enacted burdens on religion are theoretically illegal.
I wonder how Malloy is going to ban government travel to Connecticut? Is the theory that the same law can be good when liberal states pass it and evil when those bad conservative states pass it? It is more likely that the governor hasn’t looked at his own state’s law.
4. The hysteria being stirred up over the supposed horribles Indiana’s law will lead to is irresponsible. Jonathan Adler explains on The Volokh Conspiracy:
“Are the claims made against the new Indiana law accurate? Not really. This law, like other RFRAs, merely requires that state laws meet a demanding, but hardly insurmountable, test before infringing upon the religious practice or conscience of religious believers. If the law imposes a substantial burden on religious belief, the law must yield unless the law serves a compelling state interest and is the least burdensome way to advance that interest. Here’s more background on how these sorts of laws work. RFRA laws are common…Whether or not such laws are good policy, they are about accommodating religious belief, not authorizing discrimination.
Courts have routinely upheld the application of nondiscrimination laws against RFRA-based challenges on the grounds that preventing discrimination is a compelling state interest. Of course it’s possible that a court in the future would reach a different conclusion, but there’s no reason to think such a result is likely, and there is nothing about the Indiana law that makes it a particular threat in this regard. That is, such a court decision is just as possible in one of the other dozen-plus states that has had its own RFRA on the books for years or in one of the many other states that have equivalent protections for religious belief under their state constitutions.”
These claims, for example, are nonsense:
Asserting that the law “could” allow these things is pure deceit and both appeals to and encourages ignorance. Never. Impossible under established legal principles. Yes, a counselor could refuse to do his job and help gay students, but there is nothing in the laws, any of them, that would require a school to keep him in a job he refuses to do. These overblown warnings are exactly as unethical as anti-gay advocates saying that without the law, a minister could be forced to perform a gay marriage.
5. Ann Althouse argues that the attention on Indiana is unfair:
Indiana has focused attention on RFRA laws, but it’s stupid to focus on Indiana. These laws are all over the place. Understand them. Understand how they apply in many different scenarios and how they are limited by courts in their application. Understand that if we’re going to relieve religious believers of the burdens of generally applicable laws, courts are going to have to avoid preferring one religion over another. You can’t accommodate the religions you agree with or think are sweet and fuzzy and say no to the ones who seem mean or ugly. We need to figure that out. If, in the end, you think the Indiana RFRA is a bad idea, check that map and see if your state has RFRA (or a RFRA-like state constitutional provision) and push for repeal in your state. And get after Congress. Congress started it. Unless you’re Hoosier, leave Indiana alone.
It is a point worth making, but Althouse is ignoring the “wink-wink nudge-nudge” intent of Indiana’s law, which is to deliver a shot across the bow of the gay marriage movement while looking innocent and crying, “Why are you picking on little old me?” She says, “Instead of picking on Indiana, why don’t we figure out if we want RFRA laws or not?” We can, and should, do both, Ann.
6. No, the Indiana law isn’t “license to discriminate” any more than the other laws are. It is, however, license to be a mean-spirited, divisive, un-American jerk because you think gays and transgender citizens do icky things behind closed doors. That makes it an ugly, offensive, unethical law. The intent is to defy the gay marriage movement, or at least to stick a big finger in the movement’s metaphorical eye to show that the godly won’t surrender to the sodomites without a fight. How sad, petty, ignorant and demeaning.
7. Mike Pence may be a tool and a coward, but he obviously is not comfortable lying outright. An accomplished liar—a Clinton, for example— would have had no problem answering this question…
GEORGE STEPHANOPOULOS: But I think one of the problems that people have pointed out is that in Indiana, your civil rights laws don’t include sexual orientation as a protected class. And even some of the supporters of the bill who were — who appeared with you when you signed the bill, Eric Miller of Advanced America wrote that, “It will protect those who oppose gay marriage.”He put up this example. He said, “Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage.” So this is a yes or no question: Is Advance America right when they say a florist in Indiana can now refuse to serve a gay couple without fear of punishment?
…with a resounding “NO!” or a “YES!” Interestingly, both would be lies. Such discrimination might still be found to violate public accommodation laws and precedent, so the yes isn’t necessarily true, though supporters of the law hope it is. “No” would be misleading too, however, so Pence defaulted to double talk and the politician equivalent of Ralph Kramden’s “Humminahuminahumina.”
Pence was able to spin safely in his ghost-written op-ed in the Wall Street Journal, where he said that “I abhor discrimination. I believe in the Golden Rule that you should ‘do unto others as you would have them do unto you.’ If I saw a restaurant owner refuse to serve a gay couple, I wouldn’t eat there anymore.” And if you saw a baker refuse to sell a wedding cake to Rosie O’Donnell and the lucky, lucky gal she marries next, Governor? What then? “Humminahuminahumina.”
Then he writes: “As governor of Indiana, if I were presented a bill that legalized discrimination against any person or group, I would veto it. Indiana’s new law contains no reference to sexual orientation. It simply mirrors federal law that President Bill Clinton signed in 1993.”
See above. Pence knows very well that Bill was signing the law so he might be able to legally inhale with Monica in retirement and not because gay marriage was knocking on the Supreme Court’s door. Pence signed his law to make anti-gay zealots and homophobes feel better, to show them he cared about their fears, and to let gays know that they are less than welcome in Indiana.
8. I’m sure Democrats are cheering the Republican mass-immolation on the altar of stubbornness, ignorance and intransigence, and I don’t blame them. The irrational GOP position on gay marriage seriously and perhaps fatally undermines its ability to be effective in other matters where conservative arguments are ethical, strong and important: illegal immigration and abortion policy. That makes the Indiana fiasco especially harmful and irresponsible. Opposing same-sex marriage is a needlessly devisive and cruel position that exposes the worst of religious-social conservatism. It will drive the young, the fair, the logical and the educated away from both organized religion and the Republican Party, and accomplish nothing beneficial in return.
9. The best comparison to this episode is Arizona’s misguided effort to reject Martin Luther King Day. It may not have been entirely driven by racism, but in the end it didn’t matter what the “real” reason for not honoring Dr. King and the civil rights movement was. Arizona was embarrassed, hurt economically, and had to capitulate. States have rights, but the nation also has a culture that trumps local culture in important areas, like human rights. That was the lesson of Jim Crow. Whether Indiana’s law is unique or not, the timing of its passage and the impetus behind it has placed Indiana in opposition to a strengthening national cultural consensus. This is still one nation. Indiana is going to lose this fight, just like Arizona did.
10. If a religion’s tenets require its adherents to abuse, embarrass, isolate and inconvenience gays and same-sex couples, the law is not going to support those practices. Selling a cake, taking a photo, printing an invitation and renting a hall are not the exercise of religion. Discrimination against people for who they love is indistinguishable ethically from discriminating against them for the color of their skin. The message of Indiana’s declares that religious beliefs make it acceptable to treat other human beings as less than human in the United States of America.