Box Turtle Bulletin

Gov. Pence Calls For Changes In Indiana’s Right-To-Discriminate Law

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.

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.

Click to enlarge.

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.