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“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

April 1, 2015 Posted by | Discrimination, Mike Pence, Religious Freedom | , , , , , , | Leave a comment

“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

April 1, 2015 Posted by | Discrimination, Mike Pence, Religious Freedom | , , , , , , , | Leave a comment

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