Indiana Governor Mike Pence announced today that he will support new legislation to amend and clarify his state’s religious-freedom law, which may or may not have opened the door to legalized business discrimination against gays. Pence was forced to revise the state’s law by a swift and overwhelming social backlash supported by a number of business leaders.
One lesson to draw from this chain of events is that Pence and his allies either overreached or blundered, and were properly forced to retreat when liberal opponents raised well-founded objections. Instead, conservatives have reached the opposite conclusion: They have been victimized by bullying social liberals, delirious with culture-war victory. “Legal historians a century from now may be mystified by how a measure that was uncontroversial for so long suddenly became a mark of shame,” writes National Review editor Rich Lowry, “They will find their answer in the Left’s drive to crush any dissent from its cultural agenda, especially on gay marriage.” Similar wounded pleas have emanated from the likes of David Brooks, Michael Brendan Dougherty, Ross Douthat, and others.
Conservatives are not wrong to discern a powerful and increasingly imbalanced array of cultural forces aligned against them. Nor is their desire to maintain some place of sanctuary for traditional social conservative beliefs. People who consider homosexuality unnatural, or a deviant choice, will continue to have the right to preach their beliefs in church, instruct their children as they see fit, exclude gay weddings from their church ceremonies, and so on. They are losing their ability to use the machinery of state government to express their moral disapproval of gays. The battleground centers on a relatively small middle ground of businesses, such as bakers and adoption agencies, that are involved in work related to marriage and child-rearing.
Reading the conservatives, one might get the sense that social liberals descended upon the Hoosier state at random. “The question fair-minded Americans should ask before casting the first stone is who is really being intolerant,” pleas The Wall Street Journal editorial page, employing an odd metaphor to describe a movement that is responding to the enactment of a new law. The status quo was altered here by new laws brought up by conservatives, not liberals. And despite repeated insistence by the law’s defenders that it is exactly the same as a national law that has been in place for two decades, this is very much in dispute. As Paul Waldman explains, “the Indiana law is different from other laws in its specific provisions. It not only explicitly applies the law to for-profit businesses, it also states that individual can assert their religious beliefs “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.” The federal law, and most of the state laws, only concern instances where the government is forcing a person to do something or not do something; the Indiana law directly covers disputes between individuals.” Glenn Kessler and Garrett Epps further explain the differences between Indiana’s law and previous versions. The Weekly Standard’s John McCormack argues it is “not significantly different,” which, even if true, is not the same as insisting it’s no different at all.
What’s more, some of the supporters of Indiana’s religious-freedom law have wandered inconveniently off script. The American Family Association’s Micah Clark, who stood directly behind Pence at the bill’s signing ceremony, claimed that to clarify that it does not legalize discrimination would “destroy” the bill. Erick Erickson’s defense of the law builds up to a frank declaration that gay people should be denied the right to live normal lives. (“The gay rights agenda may demand the veneer of normalcy, but nature itself will deny the gay community natural reproduction.”)
It is possible that the vagueness of the law’s terms was a simple failure of clarity. It is more likely that Pence and his allies had to carefully strike a balance between public and business opinion that won’t stand for openly discriminatory laws, and a large segment of his base that demands exactly that. Either way, the backlash against Indiana was a necessary and apparently successful expression of a newfound social consensus that gay people deserve the protections of equal citizenship.