Indiana ‘religious freedom’ law needs more than clarification
You’ve almost got to feel sorry for Indiana Gov. Mike Pence. Almost.
After being universally mocked for a disastrous Sunday morning interview with ABC’s George Stephanopoulos at which Pence tried — and failed, miserably — to defend his state’s new Religious Freedom Restoration Act, Pence has become desperate to stem the flow of negative publicity and the flood of business opportunities leaving or threatening to leave Indiana. He held a widely covered news conference about plans to “clarify” the law and to show that Hoosiers aren’t haters.
He didn’t succeed.
Pence tried to shift the blame for blowback about RFRA onto the media for its “mischaracterization” of the law and for the “smear” jobs of reporting about the new law nationwide. He tried to come off as Mr. Nice Guy Hoosier, saying multiple times that he doesn’t accept discrimination. (“I went to Selma!”) He kept claiming that Indiana’s law was “exactly” like the federal RFRA law and laws on the books in other states. He emphatically said that no business in Indiana “will be allowed to discriminate against anyone.”
Too bad that’s not what the Indiana law says.
Indiana’s law differs in some significant ways from the federal law and other state laws. According to an online story in The Atlantic, Indiana’s RFRA “explicitly allows any for-profit business to assert a right to ‘the free exercise of religion.’ ” Any for-profit business. Two state RFRAs explicitly exclude for-profit businesses. In Indiana, however, there already has been anecdotal evidence of a private business refusing service. And the law doesn’t even take effect until July 1.
The Indiana RFRA also contains language letting a business’s right of “free exercise” be the defense in a civil suit brought by anyone claiming discrimination. So if a bakery didn’t want to make a wedding cake for Jim and Steve, with two grooms on top, the business can claim that its religious beliefs gave it the right to do so.
The governor also tried to use the U.S. Supreme Court’s ill-considered decision in the Hobby Lobby case as a justification. Thanks to that decision, in which private businesses are allowed to circumvent the Affordable Care Act’s requirement for contraceptive coverage to female employees, many conservatives now are saying, in essence, that Hobby Lobby gives them the right to discriminate. This law just spells it out explicitly. And by all means, Governor, when you’re getting negative publicity, find a way to pin it on President Obama.
Pence tried to appear reasonable, saying that the Indiana Legislature was working on language to “clarify” the law. Yet when Indiana Democrats tried to include language in the bill with a non-discrimination provision, Republicans voted it down. So we’re supposed to believe that the Legislature will now pass a new bill or add language to RFRA specifically guaranteeing LGBT rights?
And again: If the Indiana law doesn’t allow discrimination in the first place, why does it need clarifying? Several reporters tried to pin Pence down about proposed language in legislative clarification, but he refused to offer any specifics.
The Indianapolis Star, the state’s largest newspaper, took the unprecedented step of publishing a front-page editorial calling for a change in the law. “The consequences will only get worse if our state leaders delay in fixing the deep mess created,” the editorial said. “Half steps will not be enough. Half steps will not undo the damage. Only bold action — action that sends an unmistakable message to the world that our state will not tolerate discrimination against any of its citizens — will be enough to reverse the damage. Gov. Mike Pence and the General Assembly need to enact a state law to prohibit discrimination in employment, housing, education, and public accommodations on the basis of a person’s sexual orientation or gender identity.”
Prospective GOP candidates for president in 2016 have been tripping over themselves to defend Indiana’s new law. They obviously feel the need to solidify their conservative credentials with the party faithful, just as Pence did in signing the law.
Kentucky Sen. Rand Paul went so far as to say that he doesn’t “believe” in gay rights. Former Florida Gov. Jeb Bush claimed that “there are many cases where people acting on their conscience have been castigated by the government.” Why don’t we see examples of those “cases” whenever anyone brings up this defense?
Florida Sen. Marco Rubio sounded — well, confused. “Nobody is saying that it should be legal to deny someone service at a restaurant or at a hotel because of their sexual orientation. I think that’s a consensus view in America,” Rubio told Fox News. “The flip side is, should a photographer be punished for refusing to do a wedding that their faith teaches them is not one that is valid in the eyes of God?” So you can only discriminate if you’re a photographer, but not a restaurant?
Conservatives fear that if the Supreme Court rules that marriage equality should be the law of the land in all 50 states, as justices may do this summer, photographers, bakers, and others in the wedding business won’t have legal protection. So they’re trying to insert it into state law.
Pence had been discussed as a possible GOP hopeful for 2016, but I think it’s fair to say that his chances are now close to zero. When someone sounds as clueless as he does, he’s out of the running. Hoosiers could decide that he doesn’t even have it together enough to lead the state again when he faces them next year.
As The Atlantic story put it, “sincere and faithful people, when they feel the imprimatur of both the law and the Lord, can do very ugly things.”
The new bill in the Hoosier state is a perfectly ugly example. It seems that the famed “Hoosier Hospitality” doesn’t need to extend to everyone. Maybe the Indiana General Assembly will prove me wrong and follow the advice of the Star. But I’m not holding my breath.