March 31st, 2015
This is what Indiana Gov. Mike Spence woke up to this morning: A a rare front-page editorial in the Indianapolis Star demanding that Pence and the state legislature “stop clinging to arguments about whether RFRA really does what critics fear; to stop clinging to ideology or personal preferences; to focus instead on fixing this.” Pence responded to that and other criticisms from business leaders around the country with a news conference today in which he 1) blamed his critics for spreading ” misunderstanding and confusion and mischaracterization” (while spreading a different kind of misunderstanding and mischaracterization himself; more on that in a moment), and 2) called for the legislature to implement unspecified “clarifications” to the law.
What those clarifications might be is anyone’s guess, and caution is in order. After all, the devil is always in the details, as Pence well knows as he mischaracterizes the very law he signed last Thursday. In this morning’s news conference, Pence doubled down on the claim that the law was nothing more than a state law mirroring the federal RFRA signed by President Clinton in 1993. Of course, the law’s supporters have already revealed the differences, as Rob Tisinai pointed out yesterday. Today, Sen. Chuck Schumer (D-NY), who is likely to become the next Senate Minority Leader, and who co-wrote the federal RFRA with Sen. Ted Kennedy (D-MA), blasted Pence’s mischaracterization on Facebook:
In the uproar over the recently passed Indiana Religious Freedom Restoration Act (RFRA), defenders of the bill like Indiana Gov. Pence are trying to hide behind the argument that the law “simply mirrors” the federal RFRA Sen. Ted Kennedy wrote and I introduced as a Congressman in 1993. That may be true only if you’re using a Funhouse mirror. In reality, it is completely false, and a disingenuous argument to boot; they should cease and desist immediately comparing the federal RFRA of 1993 to their present, misguided law.
There are two simple reasons the comparison does not hold water.
First, the federal RFRA was written narrowly to protect individuals’ religious freedom from government interference unless the government or state had a compelling interest. If ever there was a compelling state interest, it is to prevent discrimination. The federal law was not contemplated to, has never been, and could never be used to justify discrimination against gays and lesbians, in the name of religious freedom or anything else.
Second, the federal RFRA was written to protect individuals’ interests from government interference, but the Indiana RFRA protects private companies and corporations. When a person or company enters the marketplace, they are doing so voluntarily, and the federal RFRA was never intended to apply to them as it would to private individuals.
Because of these significant, legal differences, the Indiana RFRA in no way resembles the intent or application of the federal RFRA. As the signer of the bill, Governor Pence should put a stop to it immediately.
Garrett Epps at the Atlantic describes a key event which led Indiana to add private companies and corporations in its law:
The new Indiana statute also contains this odd language: “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” (My italics.) Neither the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language.
What these words mean is, first, that the Indiana statute explicitly recognizes that a for-profit corporation has “free exercise” rights matching those of individuals or churches. A lot of legal thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Stores, in which the Court’s five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employees’ statutory right to contraceptive coverage.
Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government. Why does this matter? Well, there’s a lot of evidence that the new wave of “religious freedom” legislation was impelled, at least in part, by a panic over a New Mexico state-court decision, Elane Photography v. Willock. In that case, a same-sex couple sued a professional photography studio that refused to photograph the couple’s wedding. New Mexico law bars discrimination in “public accommodations” on the basis of sexual orientation. The studio said that New Mexico’s RFRA nonetheless barred the suit; but the state’s Supreme Court held that the RFRA did not apply “because the government is not a party.”
Remarkably enough, soon after, language found its way into the Indiana statute to make sure that no Indiana court could ever make a similar decision. Democrats also offered the Republican legislative majority a chance to amend the new act to say that it did not permit businesses to discriminate; they voted that amendment down.
Pence nevertheless held firm in this morning’s news conference that the problem wasn’t with the law itself, but with “perception”:
But the governor, clearly exasperated and sighing audibly in response to questions, seemed concerned mostly with defending the law and the intent behind it, saying, “We’ve got a perception problem,” not one of substance. He referred to “gross mischaracterizations,” “reckless reporting by some in the media,” “completely false and baseless” accounts of the law, and “the smear that’s been leveled against this law and against the people of Indiana.”
“If this law had been about discrimination, I would have vetoed it,” he said. “I don’t believe for a minute that it was the intention of the General Assembly to create a license to discriminate, or a right to deny services to gays, lesbians or anyone else in this state, and that was not my intent, but I appreciate that that’s become the perception.”
Pence blames “reckless reporting,” but that “perception,” as he puts it, is largely attributable to two things: the text of the law itself, and Pence’s refusal four times to answer a straight up yes/no question on Sunday about whether an Indiana business can safely discriminate against a gay customer under the new law. And if he didn’t think it was about discrimination, then he didn’t pay much attention to the debate in the state legislature leading up to the votes, nor did he happen to notice those who stood behind him as his signed the bill into law. The Governor’s office refused to identify the people attending the private signing ceremony, but GLAAD did some of that work for them.
But when you get past his self-serving complaints today, Pence has appeared to have backed down. The Washington Post’s Paul Waldman calls that a “significant victory” for gay Hoosiers:
But the pressure Pence got from people both within Indiana and around the country has essentially forced him to be true to his word. Up until now, Pence has been saying that the law was not intended to give businesses in Indiana the right to discriminate against gay people. Now he’s saying that he wants to put that explicitly within the law itself. That’s a huge win for gay people who don’t want to be discriminated against, and makes it more likely that the next state that passes a law like this one — and there are similar bills pending in multiple states — will include a similar clarification.
Not only that, Pence went so far as to say, “No one should be harassed or mistreated because of who they are, who they love or what they believe. I believe it with all my heart.” The “who they love” part is not the kind of language one usually hears about LGBT people from Republicans, particularly those as conservative as Pence.
For me though, the devil will still be in the details. It’s unclear how Pence and the GOP-controlled legislature will “fix this thing” while holding to their vow not to add sexual orientation and gender identity to the state’s anti-discrimination laws. When asked about that this morning, Pence replied, “I’ve never supported that, and I want to be clear, it’s not on my agenda. I think it’s a completely separate question.”
Despite (or perhaps, because of) the controversy, Pence enjoys powerful support within the Republican party. A rash of potential (and one declared) presidential candidates have already strongly defended Indiana’s RFRA in its current form, including former Florida Gov. Jeb Bush, Florida Sen. Marco Rubio, Louisiana Gov. Bobby Jindal and Texas Sen. Ted Cruz.
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Priya Lynn
March 31st, 2015
There’s no way he can “clarify” that the law doesn’t allow discrimination without changing the law to outlaw discrimination.
Richard Rush
March 31st, 2015
In Pence’s world, clarification means doing a better job at obfuscation.
Priya Lynn
March 31st, 2015
You nailed it Richard.
Richard Rush
March 31st, 2015
You nailed it, too, Priya.
This is going to be even more fun to watch than it already is.
Priya Lynn
March 31st, 2015
Yes, I am somewhat enjoying watching Spence squirming and trying to say how the law doesn’t permit discrimination while trying to ensure it does allow discrimination.
Mark F.
March 31st, 2015
Gays can be legally discriminated against in much of Indiana already. The new law could be amended to make it clear that it does not overrule local anti-discrimination laws.
Joseph Singer
March 31st, 2015
Yes, blame the messenger by all means.
NancyP
March 31st, 2015
Arkansas is circling the drain, following Indiana.
But Indiana has the glory of being exposed in the international press.
In other “news”, Putin has “friended” Pence. (that’s a joke, not a sourced fact).
Lorenzo from Oz
March 31st, 2015
Defending the right of Muslim taxi drivers to refuse service to blind person with a guide dog on the grounds that their religion holds dogs to be unclean would possibly be somewhat less attractive to Republicans. But that, as I understand, is what the law also does.
Mark F.
April 1st, 2015
The law allows anyone, or any business, to claim their religious freedom is being infringed upon and request relief, but that does not mean a court will go along with the lawsuit.
It’s simply not true that this bill allows anyone to circumvent the law by merely claiming their religious freedom is being violated. Any claim would need to be adjudicated.
Of course, it is clear that the backers of the bill are hoping it might allow for more anti-gay discrimination, but that does not mean a court would read the text that way.
And, as I pointed out previously, anti-gay discrimination is already legal in much of Indiana.
customartist
April 1st, 2015
It is being reported that the whole kerfuffle is not calming down at all.
Gov. Mike Pence’s press conference yesterday did little good. It appears that the damage is done. The bottom line is that Pence cannot FIX a problem that he will not first ADMIT that he has. Continuing to say that the Law “does not allow for discrimination” is not working for Pence, nor for Indiana businesses & residents.
While added LGBT protections could be a significant improvement, there would still remain the ability under this law, for anyone to us their “Religious Beliefs” to refuse service in any venue in Indiana. This still is contrary to the U.S. Constitution, and leaves individuals to defend themselves in the courts against what is authentically a Pass for the Religious to aggress upon others. The entire law must be repealed.
customartist
April 1st, 2015
As for Arkansas, while it may be difficult to identify and to boycott a whole plethora of products, it would be very EASY to avoid shopping at Walmart, and simply going to other general retailers.
Nathaniel
April 1st, 2015
customartist, there are a couple of problems with your suggestion. First, many of our allies already try to avoid Walmart for its many problems. Second, Walmart has been fighting the Arkansas law (probably for their own selfish reasons), but punishing them will not necessarily punish Arkansas to any significant degree. Indeed, it is more likely to punish local workers more than anything else, since the Corporation would just shut down any store that is under-performing. I’m not saying people should shop at Walmart, but I don’t think boycotting Walmart will fix Arkansas.
Priya Lynn
April 1st, 2015
Mark said “It’s simply not true that this bill allows anyone to circumvent the law by merely claiming their religious freedom is being violated. Any claim would need to be adjudicated.”.
Given the bible’s stance on gays it would be no problem to justify as a religious belief denying any or all services to gays. Further, religious belief is defined so broadly that almost any other discrimination could be justified as a religious belief – the person merely needs to assert that they believe their religion requires it, they don’t need to prove that there is doctrinal or church support for their belief.
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