A hue and cry has risen against Indiana since Governor Mike Pence signed the state’s Religious Freedom Restoration Act, which exempts individuals from laws that conflict with their sincerely held religious beliefs. Critics say it amounts to legalizing discrimination against homosexuals. Pence called that claim “a smear” and insists the law merely reiterates the federal Religious Freedom Restoration Act of 1993. In the interview with George Stephanopoulos above, however, the governor refused to say whether it would be legal for a Christian florist in Indiana to refuse to serve a gay wedding.1 He refused repeatedly. Stephanopoulos’s vain attempt to get him to answer yes or no begins around 1:25 and continues for four minutes, during which Pence hedges like a damn juniper. He simply will not say whether Indiana’s bill legalizes discrimination.
“Tolerance is a two-way street,” Pence keeps saying, decrying the “avalanche of intolerance” that has fallen on his state as a result of this law. It’s almost as if he passed one law to mollify his constituents in Indiana and now must present it as another law on a national stage.
Yesterday in the comments section, Attempt astutely pointed out the congruency between Indiana’s Religious Freedom Restoration Act and the federal one. The federal RFRA was passed to protect the rights of religious minorities whose rituals and restrictions contradict the law: specifically, American Indians who use peyote in religious ceremonies and Muslim inmates of federal prisons who want to keep beards. These classic cases involved members of minority religions whose practices were substantially burdened by laws and regulations in which the government did not have a compelling interest.
There are three substantive differences between the federal RFRA as it was originally intended and the Indiana RFRA as it might potentially be applied:
- Christianity is not a minority religion. The sponsors and supporters of the Indiana law are overwhelmingly Christian, and Pence’s references to “people and families of faith” somehow do not bring to mind mescaline-eating in the Native American Church. Contemporary political rhetoric is a language of dog whistles and insinuation, but the cases Pence cites in his interview all involved Christians, and the general consensus seems to be that the Indiana RFRA is for them.
- No central element of Christian practice is prohibited under Indiana or federal law. Peyote is illegal, and in some states you can’t grow a beard in prison. Drinking a little wine without ID, eating fish on Friday and wearing pleated Dockers are all legal in Indiana. It’s difficult to say what religious freedoms Indiana’s RFRA is restoring.
- There is no Indiana law prohibiting discrimination against gay people. The federal RFRA is balanced by laws protecting homosexuals, and explicitly does not apply in those cases. Indiana has no such laws. In the Stephanopoulos interview, Pence says he won’t make gays a protected class.
That’s a question he was happy to answer. His dogged refusal to say whether the Indiana RFRA would make it legal for businesses to refuse services to homosexuals, raises only two possibilities.
It’s possible that national consensus is right, and Indiana’s RFRA is designed to legalize discrimination under the extremely questionable aegis of religious freedom. Being a dick to gay people hardly seems like a central element of Christian practice, but in the self-pitying narrative of contemporary conservatism, I guess it is. Pence doesn’t want to admit that he legalized discrimination in his state because he is a probable candidate for the presidency in 2016.
It’s also possible that Pence thinks of the RFRA as an empty gesture toward Christian conservatives—a formal declaration that Indiana thinks religion is very important, accompanied by the implicit reassurance that yes, life is hard for Americans who love Jesus. In this admittedly cynical interpretation, Pence is surprised by the national backlash because politicians pass empty laws restoring freedom to people who are in no danger of losing it all the time. He just doesn’t want to admit that on national television.
Neither of these scenarios is welcome, of course, because they both involve mendacity. I guess I would rather Pence pander to Christian bigots than make concrete plans to execute actual bigotry, but I would prefer he do neither. Like the argument that “tolerance is a two-way street,” Indiana’s RFRA ignores the difference between a majority and a minority to a degree that is intellectually dishonest. Let’s hope it’s the ordinary, pandering kind of dishonesty and not a crooked plan.