After he signed the Religious Freedom Restoration Act into law in Indiana, Governor Mike Pence expressed bewilderment in an interview with the Indy Star:
“I just can’t account for the hostility that’s been directed at our state,” he said. “I’ve been taken aback by the mischaracterizations from outside the state of Indiana about what is in this bill.”
He believes that most of the hostility is a result of misinformation from the media. (He probably wishes he could have sent out some press releases from his canceled state-run media outlet!) In some ways, his surprise could be genuine. Maybe he didn’t anticipate that Indiana would become the focus of a national controversy because of this. After all, Indiana’s RFRA closely mirrors the 1993 federal version of the same law, and there are 19 other states with similar bills. Pence swears that the bill, which critics say will give Indiana residents the right to discriminate against LGBT and other minority populations, is only about protecting the religious freedom of individuals (and churches, and businesses, and organizations…) against the government forcing them to act in way that violates their religious consciences.
In response to this bill, numerous groups have canceled or threatened to cancel their economic partnerships with Indiana, and the state is the target of national outrage.
My question is this: Is it fair to say that this bill “isn’t about” discriminating against LGBT people?
Here are the questions I’m not trying to answer:
- Does an individual have the right to refuse service to a gay customer in Indiana?
- Does RFRA truly change anything about the way business is done or the way that LGBT people are treated in Indiana?” There are some good arguments that there are big changes afoot, while others say that this law is essentially lip service to the conservatives whom Pence is hoping become the base for his White House dreams.
- What is the difference between discrimination based on innate characteristics (race, gender, sexual orientation, or age) and having policies about what you will and will not do/sell/make as a company?
There are other bloggers who have tackled those topics. I want to talk about Governor Pence’s claim that the national outrage over Indiana’s RFRA is based on the liberal media’s misrepresentation of the bill.
Here’s the thing: RFRA might not actually do anything to change what discrimination looks like in Indiana, but it was sold to a certain block of voters by telling them that it would. That is a problem.
The main liberal talking point in response to this bill is as follows:
- The RFRA allows Indiana businesses to discriminate against LGBT people and other minority populations, as long as they blame their discrimination on religious belief.
The Mike Pence talking points are these:
- The law is about protecting every individual’s religious liberties.
- The law has been misunderstood and misrepresented by the liberal media.
- The RFRA is just “bringing Indiana into step” with federal guidelines and other state guidelines.
- Barack Obama voted for Illinois’s version of the RFRA when he was a senator.
- The Hobby Lobby decision shows the need to protect individuals from the government overstepping its bounds.
- The bill is not about discrimination.
Even though Mike Pence could not name a single instance in Indiana where the government had attempted to overstep its bounds when he was interviewed by conservative talk radio host Greg Garrison, he still insists that it was a necessary bill.
Governor Pence refused to answer George Stephanopoulos’s straight yes or no question, “Does this law allow businesses to decline service to a gay couple in Indiana,” when he appeared this morning on This Week. Stephanopoulos asks a version of that question again and again, and Pence repeatedly refuses to answer.
As infuriating as it is to see him attempting to dodge the question over and over and over, there is at least a logic to what he’s doing.
He can’t say that the bill discriminates against LGBT people, because technically, it doesn’t. He has the benefit of saying that the bill doesn’t actually mention the LGBT issue, and states that have RFRA haven’t seen it used as a successful defense of discrimination against LGBT people. He can point to the Hobby Lobby decision as the starting point for this, even though there is a defined conservative strategy to push RFRA bills in response to same-sex marriage making its way across the country.
But he also can’t say that it doesn’t discriminate against LGBT people. There are two main reasons for this: You can already discriminate against LGBT people in Indiana because we have no anti-discrimination statutes related to sexual orientation, and freedom to turn down gay clients is exactly why this bill got the support it did.
Let’s break that down.
First, Indiana has no anti-discrimination statutes for LGBT people. When asked if Pence would consider supporting legislation like that in order to “clarify” the purpose of RFRA, he said that was “not on [his] agenda.” When Pence says that RFRA is the law in 19 other states, he is ignoring the fact that many of those states have statutes that prohibit discrimination against LGBT people.
Does it matter that Barack Obama voted for Illinois’s version when he was a senator? No, because Illinois’s RFRA is paired with an anti-discrimination statute that tempers it! In fact, compare the map of states with anti-discrimination laws and RFRA laws, and you’ll see that there is quite a bit of overlap, which dramatically reduces the efficacy of the claim, “Well, 19 other states have RFRA laws!”
Second, all of the rhetoric used by supporters of this bill up until it passed was based on making sure that Christians can opt out of being vendors for same-sex weddings. If you don’t believe that the RFRA was created and passed with conservative, anti-gay Christians in mind, then consider this gallery of images. All of these Facebook posts come from Christian organizations in Indiana supporting the bill and explaining why. This is all material that came from before the bill was passed, so before there was national outrage.
In addition, check out these links, where conservatives argue that RFRA bills are necessary to ensure that they don’t have to serve LGBT patrons:
Focus on the Family
American Family Association (see the part where they talk about the AFA press release in Mississippi, where they said it would “protect Christian business owners against lawsuits from gay activists.”)
Family Research Council (talking about the defeat of the RFRA in Arizona)
The Alliance Defending Freedom (talking about RFRA bills in general)
When Mike Pence says that the LGBT issue is a “red herring,” it’s completely disingenuous. Why? Because this bill was proposed, fought for, and passed by the argument that religious people would otherwise be forced to participate in same-sex marriages. I know this because I listen to conservative talk radio and heard the ads that said this bill was necessary. (I wish I could find one online, but I can’t!)
How can Pence claim that “the media” is misrepresenting the bill and making it about discrimination, when the people who encouraged their legislators to vote for this bill did so because they were told it would protect their right to turn down LGBT clients and customers?
He can do so because he’s being dishonest.
It’s as simple as that.
If all of these people were wrong in their support of the bill, and it doesn’t do what Pence and the legislature told these constituents that it would do, then these organizations should be pissed at their governor and legislature for lying to them.
And if it’s not about discriminating against LGBT people, then he should be able to say that. The fact that he can’t says it all. He can’t clarify that it doesn’t create additional discrimination opportunities because this bill was sold on the fact that it would do just that!
Saying that the RFRA is about religious freedom and not discrimination against LGBT people is like me passionately arguing that Roe vs. Wade was about the right to medical privacy, not abortion. Roe v. Wade is about the right to privacy and how it extends to abortion.
The RFRA is about the right to religious freedom, as it relates to whether or not people have to serve LGBT customers and clients.
So, does the RFRA actually change much in practice in Indiana? No. It really doesn’t. I understand that. But what it has done is pointed a big fat arrow at our existing discriminatory practices.
It all comes down to this: it’s a good idea to protect the religious liberties of the people in our country, but it is dishonest to pretend that that’s not what this bill is about. Even if it doesn’t change very much in practice, it changes the rhetoric.
Mike Pence says that Indiana has faced an “avalanche of intolerance” from people who don’t understand this bill, but he ignores the fact that he’s the one that started the avalanche in the first place.
In a conversation with my brother today, we discussed how all Pence would have had to do to make things better was to go on This Week and say, “I unequivocally support every Hoosier, regardless of sexual orientation or gender identity. I believe in and support this bill, because it is designed to protect the religious freedoms of every Hoosier, but I also fully condemn any person who would attempt to use this bill as an excuse to deny someone service based on their sexual orientation.”
Why can’t he say that? Because he does not support LGBT Hoosiers. Because this bill panders to people who do not support LGBT Hoosiers. Because he is dishonest.
Governor Pence, if you want to fix this mess, then keep the RFRA if you must, but pair it with an anti-discrimination statute that ensures that Hoosiers have the right to religious freedom AND the right not to be discriminated against because of someone else’s religious convictions.