“Don’t Wreck Religious Liberty’s Brand”: A New Commandment Now Trumps Some Of The Others; ‘Thou Shalt Not Spoil The Brand’
We are all obsessed with our brands these days, and no one more so than states competing fiercely for jobs and businesses. Some of them are quickly learning that being seen as anti-gay is dangerous to their images.
As controversy engulfed Indiana over its religious liberty law that would give legal recourse to those who discriminate against gays and lesbians, leaders of North Carolina, which has one of the most conservative state governments in the country, were getting cold feet about passing a comparable statute.
“I think we need to show that if we approve this bill, that it will improve North Carolina’s brand,” said Tim Moore, the Republican Speaker of the state House of Representatives. “Anything we do, we have to make sure we don’t harm our brand.”
A new commandment now trumps some of the others: Thou shalt not spoil the brand.
Republican governor Pat McCrory went further the day before on a Charlotte radio show, saying that a religious liberty law “makes no sense.” Meanwhile in Arkansas, Republican Gov. Asa Hutchinson called on state lawmakers to recall a religious-liberty bill they had passed.
This turn of events is coming as a shock to opponents of gay marriage. They thought that moving the fight to the ground of religious liberty was a politically shrewd fallback position now that courts are ratifying marriage equality. In our rights-oriented country, the best way to push back against one right is to assert a competing one.
Conservatives have a fair claim up to a point — and now they have barreled past it. The legitimate argument is that the country has rapidly changed its mind on gay marriage even as many religious traditions continue to see homosexual behavior and same-sex marriage as sinful.
Most supporters of gay marriage are willing to acknowledge (and should) that the law cannot force religious denominations to participate in activities they regard as deeply wrong. Most marriage equality statutes have thus included broad exemptions. An objecting church, for example, cannot be forced to bless a same-sex union, nor can it be required to let its facilities be used to celebrate one. Those who want their faith communities to change their view of marriage have to work the matter out on the inside and not rely on the coercive power of the state.
But opponents of gay marriage wanted more. Going far beyond what the original Religious Freedom Restoration Act had in mind at the federal level, they want a baker to be able to refuse to confect a cake for the reception after the ceremonies and for a florist to decline to provide the bouquets.
Now, I truly doubt that there are a lot of gay couples who would give their wedding business to vendors who regard what they are doing as an abomination. As a Catholic, I might not be enthusiastic about having an anti-Catholic baker involved in my wedding festivities. Not every battle has to be fought, and I suspect that many same-sex couples will voluntarily turn to bakers and florists who can share in their joy and don’t have to be forced to come kicking and screaming to the party. Supporters of gay marriage are winning, so they should consider the virtue of graciousness toward those who still oppose it. This would be good for social peace.
But consider my example: I do not think the law should give someone who sees the pope as the anti-Christ “religious liberty” grounds to use in justifying discrimination against me. Gays and lesbians are justified in feeling the same way. By taking reasonable religious liberty claims and then pushing and twisting them into a rationale for discrimination, opponents of gay marriage have picked a fight that will weaken religious liberty arguments overall. Where would this end?
Carefully thought-through religious liberty exceptions make good sense. They involve balancing when it is appropriate to exempt religious people from laws of general application and when it doesn’t. But turning religious liberty into a sweeping slogan that can be invoked to resist any social changes that some group of Americans doesn’t like will create a backlash against all efforts at accommodating religion. Forgive me, but this is bad for the brand of religious liberty.
It is, however, entertaining to watch conservative politicians be jostled this way and that between their business constituencies who don’t want this kind of trouble and their supporters among social conservatives who insist upon it. They thought they had found a way around the country’s increasing openness to gay rights. They’re fretting about brands because they now know they were wrong.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post; The National Memo, April 2, 2015
“Fundamentally Dishonest”: The Self-Contradictory Argument All Republicans Are Making On The Indiana Discrimination Law
Now that it’s becoming a national story, all the Republican candidates are going to have to take a position on the new Indiana law that for all intents and purposes legalizes discrimination against gay people. (If you’re in the market for a lengthy explanation of what the law does and doesn’t do and what the implications are, I wrote one yesterday.) And they all look to be coming down in the same place—one that’s fundamentally dishonest about the law and its implications. They’re essentially trying to have it both ways, supporting the establishment of a right of discrimination for religious business owners, but claiming that they are supporting no such thing. Here’s Jeb Bush talking to Hugh Hewitt yesterday:
Bush: I think if you, if they actually got briefed on the law that they wouldn’t be blasting this law. I think Governor Pence has done the right thing. Florida has a law like this. Bill Clinton signed a law like this at the federal level. This is simply allowing people of faith space to be able to express their beliefs, to have, to be able to be people of conscience. I just think once the facts are established, people aren’t going to see this as discriminatory at all.
Hewitt: You know, the Religious Freedom Restoration Act was signed in 1993. It’s been the law in the District of Columbia for 22 years. I do not know of a single incidence of the sort that Tim Cook was warning about occurring in the District in the last 22 years.
Bush: But there are incidents of people who, for example, the florist in Washington State who had a business that based on her conscience, she couldn’t be participating in a gay wedding, organizing it, even though the person, one of the people was a friend of hers. And she was taken to court, and is still in court, or the photographer in New Mexico. There are many cases where people acting on their conscience have been castigated by the government. And this law simply says the government has to have a level of burden to be able to establish that there’s been some kind of discrimination. We’re going to need this. This is really an important value for our country to, in a diverse country, where you can respect and be tolerant of people’s lifestyles, but allow for people of faith to be able to exercise theirs.
Just to be clear, the Indiana law is not like the federal RFRA, in both the context in which it was passed and its particular provision. The Indiana law specifically applies to disputes between individuals, whereas the federal law discusses only personal conduct the government is trying to regulate. (The federal law came about because of a case where two Native Americans were denied unemployment benefits because they had used peyote in a religious ceremony.) But in any case, Republicans like Jeb are trying to pretend that we can satisfy everyone, and that the Indiana law does so. But we can’t, and it doesn’t. We have to make a choice.
What Bush is doing here (and what Indiana Governor Mike Pence and the rest of the Republicans defending this law are doing as well) is a misleading little two-step. Their argument is: 1) We must allow religious people to discriminate; and 2) This has nothing to do with discrimination. But both those things can’t simultaneously be true. You can call it “simply allowing people of faith space to be able to express their beliefs” or “people acting on their conscience,” but the whole issue is that the act of conscience that they want to undertake is also an act of discrimination. That’s because the particular acts of conscience we’re talking about are those that are not in the realm of speech or worship but in the realm of commerce, and they involve another person.
The cases in question are essentially zero-sum conflicts of claimed rights. Janet wants to have an anniversary dinner in a restaurant; Mike, the restaurant owner, doesn’t want to serve gay couples. There are only two possible outcomes: Janet and her partner get served, in which case Mike has to give; or Mike gets to refuse that service, in which case Janet has to give. You can dress up Mike’s motivations any way you want—”sincere religious beliefs,” “act of conscience,” whatever—but that doesn’t change the fact that one person is going to win and the other is going to lose.
The liberals who object to the Indiana law are making their choice clear: Janet’s right to be treated equally trumps Mike’s desire to discriminate, even though that desire is based on religious beliefs. The conservatives who support the law are taking the opposite position: If it’s based on a religious belief, Mike’s right to discriminate trumps Janet’s right to be treated equally. I happen to disagree with the conservative position, but I would respect it a lot more if they’d just come out and admit what their position really is. Instead, they’re trying to claim that there’s no conflict between Janet and Mike and they aren’t taking a side.
But they are. These kinds of conflicts are the whole point of this law, the reason why Republicans wanted to pass it and would like to see others like it. Of course, nobody wants to say they support “discrimination.” But if that florist in Washington or that photographer in New Mexico whom Bush is defending have a policy that says, “We will accept the business of straight couples but not gay couples,” then they’re discriminating. Republicans want to make sure that business owners have a legal right to discriminate against potential customers in that fashion. They ought to just admit it.
By: Paul Waldman, Senior Writer, The American Prospect, March 31, 2015
“Willfully Chose To Reject Changes”: Indiana Republicans Were Warned About Their Anti-Gay Bill
Governor Mike Pence promised Tuesday to “fix” a controversial law with anti-gay undertones in an attempt to stop the constant hammering the state has received since he signed the Religious Freedom Restoration Act into law last week.
“I don’t believe for a minute that it was the intention of the general assembly to create a license to discriminate or right to deny services to gays, lesbians or anyone else in the state, and it certainly wasn’t my intent, but I can appreciate that has become the perception,” Pence said.
But advocates for changes to the law said if Pence didn’t know this would turn into a public-relations dumpster fire, he was either willfully ignorant or simply didn’t care.
Gay-rights advocates said they flagged the problem with the lack of protective language early in the process and pushed minor amendments to the bill, they say, would have largely resolved the issue.
It is unclear whether Pence himself knew about the amendments, but two people familiar with the lobbying effort behind the pro-LGBT measures said it was clear very early in the process that the governor did not want any changes to the bill.
“Pence and his party insisted that the bill not be balanced,” said Indiana Representative Ed Delaney, a Democrat and the author of an amendment that would have added the sentence “the protection of civil rights; or the prevention of discrimination; is a compelling government interest” to the bill.
Delaney said Pence’s office either didn’t know or didn’t care about the amendments.
“He’s created this problem,” Delaney said.
Another amendment would have exempted civil rights laws from RFRA—a change modeled after similar laws in Missouri and Texas. (Indiana’s civil rights laws do not protect LGBT individuals—but several local municipalities, like Indianapolis, have laws on the books that extend civil rights protections to the LGBT community).
Both amendments were rejected by the Republican-led Indiana legislature.
Pence’s retreat—just Sunday he said the law would not be changed—signified that Indiana’s culture warrior had, once again, bit off more than he could chew.
As the uproar started, Pence staff thought the issue would fade, according to a source last week familiar with a conversation between Pence and his aides. So while Pence expressed surprise at the vitriol created by the law, LGBT advocates said he should have seen it coming.
“There is no surprise in this,” Dale Carpenter, a constitutional and civil liberties law professor at the University of Minnesota Law School.
“They chose to reject those changes in the committee and again on the House floor that suggests to be the legislative intent here is to allow religious freedom to impact anti-discrimination laws,” said Tyler Deaton, senior advisor at American Unity Fund, a pro-gay conservative group.
Pence insisted in an uncharacteristically defensive interview on This Week last Sunday the bill was about religious liberty, not discrimination.
“There’s been shameless rhetoric about my state and about this law and about its intention all over the Internet,” he said. “People are trying to make it about one particular issue.”
“Shameless rhetoric” aside, there are plenty of reasons to be skeptical of Pence’s explanation, starting with the actual signing of the bill.
And it had everything to do with the “particular issue.”
In a photo of the private signing ceremony, Pence is surrounded by a small group of people—including the three wise men of the anti-gay marriage movement of Indiana: Micah Clark, executive director of the American Family Association of Indiana; Curt Smith, president of the Indiana Family Institute; and Eric Miller, executive director of Advance America.
Delaney said the presence of those individuals at the signing ceremony spoke volumes about the intent of the law.
“Is Mike Pence the only person who hasn’t read their press releases?” Delaney asked. “He knows what they wanted to do.”
Pence, himself, has a long, proud record of opposing gay rights during his tenure in Congress.
It also isn’t the first time he carried it into the governor’s mansion, where it has had some pretty embarrassing results.
A push for a constitutional ban on gay marriage in Indiana ended in failure but only after the Pence team tried to censor the opposition.
When gay-marriage proponents posted their displeasure with the measure on Facebook, Pence’s staff simply deleted the messages.
Initially, Pence and his staff said they just deleted comments that were obscene— but later fessed up to removing only the comments that disagreed with the governor’s position.
“On careful review, it appears that this was not always the case and some comments were being deleted simply because they expressed disagreement with my position. I regret that this occurred and sincerely apologize to all those who were affected,” Pence wrote in a Facebook post at the time.
Adding insult to injury the measure failed, giving Pence a black eye just a year into his governorship.
This is a slightly different response than Pence was used to during his time in Washington.
As a member of Congress he had no problem opposing rights for the LGBT community.
He voted for a constitutional amendment to ban gay marriage and against the Employment Non-Discrimination Act, which would have added LGBT as a protected group on the federal level from discrimination in the workplace.
When the federal amendment to ban gay marriage failed to pass the House in 2006, Pence proclaimed it a “successful failure.”
“We poured a little more concrete in the footings of a building that will be built,” Pence said at the time, according to the Associated Press.
He was lauded as a hero by the right for his positions on social issues—receiving multiple “True Blue” awards from the Family Research Council for “his commitment to the family and sanctity of human life.”
The Indiana Family Institute, which was instrumental in crafting the RFRA bill, has likewise awarded him the “Friend of the Family Award.”
But being a culture warrior as governor, as he has found out, has higher stakes.
“He could afford to be a culture warrior because it wasn’t impacting an entire state’s economy,” Deaton said, referring to the burgeoning “boycott Indiana” campaign. “And now he has a different burden on his shoulders and this is turning out to cost the state tens of millions of dollars on the bottom line, thousands of jobs. This is really problematic for a governor.”
By: Jackie Kucinich, The Daily Beast, March 31, 2015
“Gov. Pence Feels The Effects Of Epistemic Closure”: Hailing The Beliefs Of Those Living Inside ‘The Bubble’
Back in 2010, Julian Sanchez did us all a favor by defining something he called “epistemic closure.”
One of the more striking features of the contemporary conservative movement is the extent to which it has been moving toward epistemic closure. Reality is defined by a multimedia array of interconnected and cross promoting conservative blogs, radio programs, magazines, and of course, Fox News. Whatever conflicts with that reality can be dismissed out of hand because it comes from the liberal media, and is therefore ipso facto not to be trusted. (How do you know they’re liberal? Well, they disagree with the conservative media!) This epistemic closure can be a source of solidarity and energy, but it also renders the conservative media ecosystem fragile…It’s not just that any particular criticism might have to be taken seriously coming from a fellow conservative. Rather, it’s that anything that breaks down the tacit equivalence between “critic of conservatives” and “wicked liberal smear artist” undermines the effectiveness of the entire information filter.
The only information allowed inside this bubble of epistemic closure conservatives have built is that which confirms what they already believe to be true. Anything that contradicts their beliefs is written off as coming from “wicked liberal smear artists” and so, not only will it be rejected, it must be destroyed for the threat it represents.
As Sanchez points out – that creates a certain vulnerability for conservatives. What happens is that every now and then, the reality outside the bubble is simply too difficult to ignore and/or reject. We all watched as that happened to one conservative commentator after another on election night 2012. Even the Republican candidate himself was finally shaken out of his epistemic closure. Reality stepped in a provided a bitter pill for all to swallow.
But when your whole identity has been built underneath the protection of that bubble of epistemic closure, even moments like that are followed by rationalizations that attempt to repair the fabric that was torn by the intrusion of reality.
What we’re witnessing right now is that Gov. Mike Pence of Indiana is experiencing just such a breach in the bubble of his own epistemic closure. He actually believed that the people of Indiana (and the country) would hail his state’s adoption of the Religious Freedom Restoration Act because that’s what everyone inside his bubble believed.
I spoke with Pence on the same day that thousands of people rallied at the Statehouse in opposition to the law. And the same day that Angie’s List CEO Bill Oesterle announced that his company will abandon a deal with the state and city to expand the company’s headquarters in Indianapolis because of RFRA’s passage.
Oesterle’s statement is a telling sign that the outrage over RFRA isn’t limited only to the political left. Oesterle directed Republican Mitch Daniels’ 2004 campaign for governor. And it’s a signal that the damage from the RFRA debacle could be extensive…
I asked the governor if he had anticipated the strongly negative reaction set off by the bill’s passage. His response made it clear that he and his team didn’t see it coming.
“I just can’t account for the hostility that’s been directed at our state,” he said.
Of course Gov. Pence is now backtracking on this bill and promising to clear up the “confusion” about its intent. But, just as legislators in Georgia learned this week, it is the intention of supporters of RFRA to discriminate against LGBT people. He’s about to learn precisely what it means to be between a rock and a hard place.
Democrats should take note of this moment. We often give the pronouncements of those who live inside a bubble of epistemic closure too much power. As Stephen Colbert said so many years ago, “Reality has a well-known liberal bias.” Eventually that reality breaks through.
By: Nancy LeTourneau, Political Animal Blog, The Washington Post, March 29, 2015
“Indiana Takes On America”: Discrimination Against Gays, Religious Freedom And Rewriting The Constitution
The easy part is over. Americans now understand what the Indiana “Religious Freedom” law was intended to do: legalize discrimination by private businesses against homosexuals. It’s not a secret, as Eric Miller of Advance America said. Indiana acted “to help protect churches, Christian businesses and individuals from those who want to punish them because of their Biblical beliefs! Christian businesses and individuals deserve protection from those who support homosexual marriages. A Christian business should not be punished for refusing to allow a man to use the women’s restroom!”
Anti-gay bias and intent to discriminate are itself reasons to oppose the new law. But there’s much more at stake. The organized Right is re-writing the Constitution and the impact will not be limited to gay Americans.
The supporters of the Indiana law are more diverse, intellectually capable, and more widely found across America than we think. Nineteen states have such laws, and not just the Old Confederacy. Liberal Rhode Island has one. The Indiana Catholic Conference supported the law (It “is very important to secure its passage”). The Indiana legislature considered it carefully, had hearings and received pages of testimony from distinguished legal scholars. (The Bill and the Testimony can be found at: The Bill; The Testimony)
There are elements of their argument that most Americans would support. We widely accept that religious organizations and places of worship should be free to practice what they believe. Should a church have to marry people outside its faith and beliefs? Should a Catholic church be legally required to perform a same-sex marriage? Should an Orthodox shul or a mosque be legally required to hire female rabbis and imams? Probably not.
It makes you think. Most Americans would say that some laws, even good ones, don’t apply inside a place of worship. If that is all the Indiana law did, it would not have stirred up the current commotion.
But Indiana went well beyond that. The law extends the inside-the-church exemption to commercial enterprises. Business corporations get the same protection that a church gets.
If you think you’ve heard this before, you’re right. It’s the same argument used to attack Obamacare in the “Hobby Lobby” lawsuit. That time is was about insurance coverage for contraception, but the argument was the same.
And you also heard a variant in Citizens United, where the Supreme Court conservative majority said corporations have the same constitutional free speech rights as do living, breathing people.
The traditional view was that by engaging in business, you agreed to live by the laws of commerce. If not, then religious belief could justify segregation, or refusal to hire or serve women, or Muslims, or Catholics, or Jews. Or gays. There were, and are, a lot of sincerely religious people who would jump at that opportunity. The Indiana law re-establishes the right to commercially discriminate, especially against gays, if that’s your religious teaching.
The Indiana brouhaha illuminates the broader, and more dangerous legal strategy at the heart of Tea Party, right-wing ideology, the personification of corporations. By enlarging the constitutional rights of powerful, wealthy and largely conservative corporations, the Right is diminishing the constitutional rights of most Americans.
It isn’t the least bit “conservative”. It is a radical, un-American, reactionary re-writing of our basic freedoms. We had struck a constitutional balance between private religious observance and public commercial activity. Real conservatives would be looking for a way to reasonably accommodate both interests.
With any luck, what’s going on in Indiana will provoke a better understanding of what the Right is attempting. In the end, Tea Party skepticism of government intrusion on personal liberty is perfectly reasonable. But in this century, our liberties can be equally threatened by rewriting the Constitution to empower corporations that impinge on our liberty with equal effect.
Practice your religion in peace and dignity. Do business without discrimination and bigotry. Sounds easy.
By: Richard Brodsky, Senior Fellow, Demos; The Blog, The Huffington Post, March 29, 2015
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