Sorry to go all RFRA, all the time here. But I wanted to address a little bit further the issue of how the RFRA discussion came to be focused on gay rights. My sense of the actual text of the law is that it does not particularly target gay rights or, for the most part, let people infringe upon such rights based on religion. I can see it coming up in the context of a local human rights ordinance that protects against discrimination based on sexual orientation where the person doing the discriminating claims it’s compelled by their religion.
That said, the text of the law does not address gay rights directly and certainly similar legislation has been approved in places and by people one normally associate as being favorably inclined toward gay rights. So, why has the debate played out in Indiana the way it has?
My sense is that the social conservatives felt stung by their defeat in the marriage equality battles. They failed to get a marriage amendment to the Indiana constitution on the ballot and the federal courts have declared such measures to be contrary to the U.S. Constitution. That was when the Indiana RFRA push began. I think it was something that was substantively palatable to most of our lawmakers because it had been passed in many places and has been largely unobjectionable to most people. At the same time, it could be sold rhetorically by advocates of social conservatism as a victory against the LGBT menace threatening Christianity. Take, for example, Eric Miller of Advance America:
Indiana now becomes the 20th state with a Religious Freedom Restoration Act.
Eric Miller, the Founder and Executive Director of Advance America stated: “It is vitally important to protect religious freedom in Indiana. It’s the right thing to do. It was therefore important to pass Senate Bill 101 in 2015 in order to help protect churches, Christian businesses and individuals from those who want to punish them because of their Biblical beliefs!”
Churches, Christian businesses and individuals deserve protection from those who support homosexual marriages and those who support government recognition and approval of gender identity (men who dress as women). SB 101 will help provide the protection!
Here are just three examples where SB 101 will help:
Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage!
A Christian business should not be punished for refusing to allow a man to use the women’s restroom!
A church should not be punished because they refuse to let the church be used for a homosexual wedding!
(Holy exclamation points, Batman!). Miller isn’t just some crank off the Internet. He was given a prominent spot at the private signing ceremony by Gov. Pence. He is one of the people this legislation was designed to appease.
So, legislators are in a bit of a bind. It’s all well and good for them to say that this legislation doesn’t hurt gay rights. There is a pretty good chance they’re mostly right. But that message isn’t going to carry the day unless and until they come out and directly admit to social conservatives, “we haven’t done anything to address your concerns about gay people.” Unless that message comes across clearly, the gay community and those who support them can be excused for taking people like Miller at their word that this legislation was intended to assist guys like him retain the ability to treat gay people like second class citizens. The ability of lawmakers to communicate that message is further complicated by the fact that they had an opportunity to amend the bill in a variety of ways that would have made explicit that it was not intended to facilitate discrimination. See, for example, Sen. Lanane’s proposed amendment:
(b) This chapter does not apply to:
(1) IC 22-9-1 (Indiana civil rights law); or
(2) any state law or local ordinance that prohibits discrimination on the basis of sexual orientation.
That proposal was defeated in the Senate 10-40.
Whatever the legal effects, however, the rhetoric surrounding this legislation was never closely tethered to reality. Now that it’s law, getting the horse back in the barn by asking people to focus on what the law does in reality will be awfully tough.
I so appreciate your perspective on this
It was the context and not the words specifically
Would I be on solid ground to say that although it is not relevant in a court of law, the “appearance of the reality” is far more important in the way the public sees it than what its intentions and wording specifically are?
I read the whole page from which you quote Mr. Miller, and my impression was that the law is about nothing other than how to deal with gay people.
Your “sense” of RFRA is far too modestly expressed. You’re clearly right that it doesn’t target gay rights or license discrimination. You could help get word out on that by not pussyfooting around about the facts or giving Eric Miller the oracular credit he’s been scrambling for since the early 80s.
Indiana RFRA will be of help to more prisoners, schoolkids and others than to “discriminating” businesses, who already have financial and social stigma motivations not to decline business.
I did my more substantive analysis yesterday. I felt like that was pretty even handed and that I’ve done my part in terms of getting the word out about what this law does. I hedge because I do think RFRA could be used by a business to avoid the impact of applicable human relations ordinances. However, I imagine its negative impact will be minimal. That said, I don’t, frankly, think RFRA is going to help many people either. This debate has not made me aware of situations where having this law in Indiana would have been especially helpful.
What I’m annoyed by at the moment are lawmakers who supported the legislation acting bemused about how anyone could’ve gotten the wrong idea about the law. Misinformation about the gay threat and efforts to protect Christians is useful when it’s being used to alternately incite and appease social conservatives. But when the rest of the world takes such rhetoric at face value, they’ve got it all wrong.
Doug, I cannot identify any legislator whose interpretation would be trusted now. I was surprised at how unpersuaded Greg Garrison sounded when Gov. Pence was explaining the bill after the signing.
A huge thank you for your thoughts on this matter.
For sure, however this comes down legally in the courts, it’s not going well for Pence’s “Indiana jobs” program. It looks like folks who were coming to Indiana before the law–not exactly mom and pop grocery stores–are looking elsewhere, and others are avoiding the state like Ebola is in the water.
It’s significant that the Indiana Chamber of Commerce and Cummins Engine (not exactly anonymous actors) told the state to back off because it would be bad for business, and now it’s happened. I think this situation stems from the ideological position of some of our “politicians”, who believe that “doing God’s will”, nonwithstanding obvious political issues and the lack of consensus that this is really “God’s will”, is more important than those issues and the consequences. It’s like they said, “Damn the torpedoes!”, and now the torpedoes are hitting the ship and they are actually surprised it’s happening. I guess they thought that “doing God’s will” meant no financial consequences, These “politicians” are not ready for prime time, but they now have everyone’s attention. Just glad it’s not me.
Thank you, Doug. Your calm clear-eyed analysis is missing in pretty much the entire internet and media right now.
I am an activist, as you well know. And I do have fears about the outcomes, but the whole “boycott Indiana” movement seriously disturbs me. There are plenty of great solid caring Hoosiers – look, Pence got only 49%. And frankly, I’m tired of a couple of slick self-serving local pols who seem to think I can’t read or don’t know what the possible outcomes are.
The most telling point for me was that pic. Did I know that the Unholy Trinity of Miller, Clark and Smith were involved? Duh – and I’m on their email list, so I know exactly the language they use. Either it’s a slap at gays or they’re lying to their donors. And that’s exactly what this is about – they lost – they needed a win – they need it to hit gays – but the pols want to hide behind “it’s just the same.”
Both sides have gone off the rails crazy in terms response. But this was predicted by solid Republican folks like the Chamber of Commerce. Too bad the Teapublicans have control of the agenda.
The adults in the GOP need to step up and get some discipline.
HoosierOne, I must disagree with your statement about the Boycott Indiana movement. I regret the loss of economic opportunities, but the Republican party must pay a political price for RFRA.
The Republicans are always talking about taking responsibility and consequences for behavior, comments usually self-righteously aimed at poor people. Well, maybe God foreordained that the current administration is deserving of some consequences, too, and that the public understands that foolishness has its own rewards. Perhaps they need to understand that they don’t HAVE to vote R, and that there are other alternatives besides self-righteous, arrogant prigs. Lots to learn in these lessons.
Bill Osterle, chair of Mitch’s first election has announced that Angie’s List is canceling its expansion plans, and as a result the improvements that are so needed on the Eastside of Indy. He is one of the Republican adults.
The smart political thing for Mr. Pence would be to announce that he has seen the light, fired the people who advised him to sign this bill, and has vetoed it for the good of the people of Indiana. Jobs are number one for him, and he is too concerned about the welfare of the people to let a divisive bill like this stand. Is that going to happen? Not as long as he’s breathing. He doesn’t seem to understand what it means to be a good politician. He’s an ideologue who will go down with the ship. The ship is his.to sink, and he seems to be doing that very well, thank you.
After seeing Pence light himself on fire this morning on ABC, there’s no doubt — as if tone-deaf efforts like his XinHoosier News Agency didn’t make it clear — he’s in a bubble, one that’s going to be near-impossible to pop. Unfortunately, the business wing of the GOP is in too deep
with the evangelicals to step out and introduce a version of this that provides LGBT protection. They’ve gerrymandered their districts so well they can only be challenged from the right.
The phrase “be careful what you wish for” seems to apply.
The fig leaf they should reach for is the Tim Lanane amendment that was voted down 40-10 in the Senate- that basically says this bill is not meant to overturn any local laws on nondiscrimination… I.e. Back to where we were when we started, without repealing the whole bill. But that would truly piss off their anti-gay backers Miller, Clark & Smith who were crowing about how this smashed the gay community on the day he signed it. And I doubt it would totally satisfy the other side… Maybe the national media and business types. But the worst thing is that these people can’t be seen to back down or they might as well commit hari Kari
Oesterle will have to get Sen. Kenley or another heavy hitting R to carry the amendment. Maybe 3-4 R legislators have the political capital to pull it off, but will any do it to save Gov. Pence? That is less clear, when you get the holy trio against you for the rest of your career.
I think that the fig leaf would be to remove the part which defines a corporation/company as a person.
I suspect that most people would be ok with an individual’s religious freedoms being protected (if they need to be so via this law is a different issue) but making a corporation have the same rights seems wrong.
Since I have not read the law and am relying on other information, please correct me if it is not the case that the Indiana law is different than the other states’ laws in defining a corporation as a person for this law.
I don’t recall the assault on religious liberty being documented anywhere (reminds me of all the voter ID fraud we heard about). This was justified because christians “feel” the exercise of their beliefs was being attacked. If only we could document Christian denouncements of Islam over the past 14 years…
As I recall, out of 320million residents, there was one baker case challenge to the Human Rights Ord. in Washington state, and one photographer case in NM, again on the local civil rights statute. That only leaves 319,999,998 of us ready to file if not dissuaded by IRFRA.
“They’ve gerrymandered their districts so well they can only be challenged from the right.”
Exactly what is happening. And it has pulled the GOP hard to the right and has and will cost them elections.
And I never saw it coming and don’t know of one person who did.