The media called for a fix. Indiana Republicans conceded. What will the religious right do now?
When Republican Gov. Mike Pence signed Indiana's Religious Freedom Restoration Act (RFRA) a little over a week ago, neither he nor the legislature that passed it anticipated the severity of the backlash that would befall him and the state he governs. The law in question is related to the federal version signed into law by President Clinton in 1993 that was originally designed to allow individuals the ability to conduct religious observances that may run afoul of federal law; Indiana's version, however, contains
important differences that would flip the purpose of the federal law on its head by providing privately held businesses an avenue to refuse services to LGBT clientele.
Whether through simple ignorance or willful duplicity, Gov. Pence insisted for the better part of the following week that the RFRA would not allow discrimination, and held a press conference to ask the legislature to send a fix to his desk clarifying that discrimination would not be permissible. Well, the legislature did exactly that, even going to far as to kick Democrats off the relevant committees to make sure that they couldn't push for something stronger.
Specifically, the new language says the RFRA does not authorize a provider — including businesses or individuals — to refuse to offer or provide services, facilities, goods, employment, housing or public accommodation to any member of the public based on sexual orientation or gender identity, in addition to race, color, religion, ancestry, age, national origin, disability, sex or military service.
The proposed language exempts churches or other nonprofit religious organizations — including affiliated schools — from the definition of "provider."
This fix will be enough to placate most business and civic leaders who had expressed concern or threatened boycotts about the bill—and by signing it into law, Pence has gone a long way toward validating his assertions that he did not intend for the original bill to be discriminatory. But there's one group of people who certainly aren't happy: the people for whom the original was written in the first place.
More below the fold.
The statements by both Pence and legislative leaders that discrimination wasn't allowed under the original bill seemed so insincere precisely because allowing businesses to discriminate was the whole point of the legislation. The U.S. Supreme Court decision dictating the the federal RFRA did not apply to local state laws was handed down in 1997. In the intervening 18 years, Indiana did not see fit to pass its own version of the bill. Until, that is, the religious right decided, with the fight over same-sex marriage no longer winnable in the long term, to shift focus to allowing business owners to discriminate against the LGBT community.
Let's take the case of last year's Values Voters Summit, the annual confab of the most virulent elements of Christian supremacism. One of the main-stage panels on the biggest day of the conference featured Melissa Klein, a cake baker in Oregon who chose to shut down her bakery rather than design cakes for same-sex celebrations. Klein is one of a handful of small business owners whose stories are circulated by anti-gay conservatives in an effort to promote laws that allow discrimination against gay clientele—and interestingly, these business owners are almost always photographers, bakers, or florists, the most traditional of wedding vendors.
When Gov. Pence signed the bill in the first place, he was surrounded by representatives of the same anti-gay groups who have been pushing explicitly for the right of business owners to deny services to the LGBT community. During the drafting process of the bill, they made known why they wanted the bill passed, and explained exactly what the effort was all about:
Clark has been publicly advocating for the bill as a means for allowing anti-LGBT discrimination since December, long before the legislation was even drafted. This directly contradicts the claims made Monday by House Speaker Brian Bosma (R) and Senate President Pro Tem David Long (R) that the legislation never had anything to do with discrimination.
Eric Miller, Executive Director of Advance America, is another anti-LGBT activist who stood by Pence as he signed the bill. Advance America praised Pence for signing the bill last week, openly stating that it would allow wedding vendors to refuse to serve same-sex couples and allow Christian businesses to refuse transgender people access to restrooms. Miller was quoted as saying, “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!” Pence and Miller, it turns out, go way back.
As the fix was being debated, communications from social conservative groups proved beyond a doubt that Indiana's original RFRA bill might as well have been called the "I can refuse to be hired to photograph your gay wedding" law. Consider this statement from the Family Research Council, put out as the nature of the fix was being debated:
"The governor addressed the complete falsehood that RFRA is about denying people a seat in a restaurant or a room at a hotel. Christians would never deny people these services but being forced to participate in a ceremony that violates religious beliefs is completely un-American and uncivil. We must ensure that religious business owners are not forced by the government to participate in a same-sex ceremony. What RFRA is intended to do is to protect people from government discrimination. However, until we see the wording of his proposal, the impact on religious businesses and churches is unknown.
The hullabaloo with
Memories Pizza, an Indiana business whose owners explicitly said they would not provide pizza for a same-sex wedding reception, blurs that distinction to some degree, but even that is beside the point. The religious right has shifted strategy from trying to prevent same-sex marriages from occurring to making sure they can refuse their business services to gay couples who, by the very act of getting married, are reminding them that same-sex marriage exists. It's one of the biggest issues for social conservatives right now, which is why new RFRA legislation is popping up all over the place.
That's why the fix that Indiana just adopted is so important. It may not give social justice advocates everything we want, but it constitutes a major defeat for the social conservative movement and destroys the whole reason they passed the bill in the first place. And that's a good policy win, combined with an enjoyable dose of schadenfreude.