Somewhere, maybe, there is a political operative for one of the Republican presidential candidates who is sitting at a desk, hunched over a computer smiling at the viral news that the Grand Old Party has taken a another hard right turn into the war zone of culture, but some how I doubt it.
The #indiana has, at least for a few more days, reshaped and shuffled the pre-primary primary season for the Republican Party and I’m betting no one from Jeb Bush to Ted Cruz was really looking to be defined by the actions of the Indiana state legislature. But, you try to go to the White House with the issues you have, as Donald Rumsfeld might say.
Indiana, home to great basketball, fast motor racing and St. Elmo’s Steakhouse (one of the greatest I’ve ever visited), has discovered the power of social media this week. When Indiana Governor Mike Pence signed a “religious freedom” law into effect a few days ago he set off a national debate vastly beyond anything the Hoosier state has seen in a long, long time. The time that
former Indiana basketball coach Bobby Knight threw a chair hardly registers compared to the shock of Pence and Indiana Republicans touching a new third rail of American politics – discrimination couched as expressions of religious belief.
But first, let’s consider the politics. According to the Gallup polling organization, the level of acceptance of homosexuality in the country is at an all-time high – more than 60 percent – and even higher among younger Americans. Support for same sex marriage has crossed the same threshold of acceptance. According to Pew Research, opposition to same sex marriage stood at 65 percent in 1996, but by last year public opinion had shifted dramatically with 54 percent of Americans now approving of the idea.
It is not necessary to be an MIT math whiz to see that the world has changed and the pace of change is only likely to accelerate as younger Americans, vastly more accepting of all types of diversity, assert themselves in the economy and politics. The modern Republican Party is on the wrong side of this divide.
Second, in the wake of the still unfolding Indiana firestorm, Republicans find themselves in the almost always uncomfortable political position of debating the technical, legal aspects of a law. When a politician is forced, as Pence was, to say that a law he signed is not a license to discriminate against gay and lesbian Americans and then forced to explain legally how that is possible, you have the political equivalent of explaining how a watch is made when the public just wants to know what time it is.
Whether it has been completely fair or not, the Indiana legislation has been forever defined as at a minimum, opening the door to discrimination based on sexual orientation. Republican candidates have been reduced to explaining what the law doesn’t do rather than what it was reported to accomplish. So far they have mostly botched the task.
The backlash, both politically and otherwise, has been intense. One of the best Tweets I’ve seen was from the Indianapolis Motor
Speedway, home of the legendary 500 mile race. The Speedway’s famous sign simply spelled out: “We Welcome Everyone.”
A lengthening parade of some of the biggest business brands in the country – Nike, Walmart, Apple, Twitter, Yelp, Levi Strauss, Eli Lilly and Accenture, among others – have publicly opposed the Indiana law. The NCAA has essentially said it will not allow future big-time college athletic events in Indiana. (When the NCAA looks good in comparison, #indiana, you have a problem). All this, too, creates political fallout, as Bush will undoubtedly find when he goes calling for campaign cash in Silicon Valley this week. More importantly, business is signaling that discrimination is bad for, well, business.
So, if the politics of discrimination against gay and lesbian Americans – or even the appearance of discrimination – doesn’t make political sense, and with many of the usual business allies of the Republican Party in revolt against an Indiana-type law, why do it? [Arkansas Republican Governor Asa Hutchison apparently asked that question when presented with a similar proposal in his state. Hutchison, after first indicating he would, now says he’ll not sign the legislation.]
I think Amy Davidson, writing in The New Yorker, has the answer to the why question.
“The Indiana law is the product of a G.O.P. search for a respectable way to oppose same-sex marriage and to rally the base around it. There are two problems with this plan, however. First, not everyone in the party, even in its most conservative precincts, wants to make gay marriage an issue, even a stealth one—or opposes gay marriage to begin with. As the unhappy reaction in Indiana shows, plenty of Republicans find the anti-marriage position embarrassing, as do some business interests that are normally aligned with the party. Second, the law is not an empty rhetorical device but one that has been made strangely powerful, in ways that haven’t yet been fully tested, by the Supreme Court decision last year in Burwell v. Hobby Lobby. That ruling allowed the Christian owners of a chain of craft stores to use the federal version of the RFRA (the Religious Freedom Restoration Act) to ignore parts of the Affordable Care Act. Ruth Bader Ginsburg, in her dissent, argued strongly that the majority was turning that RFRA into a protean tool for all sorts of evasions.” She was correct.
In short, the efforts in Indiana and Arkansas involve crafting laws sufficiently vague and open to wide interpretation expecting that the new statutes can serve as a vehicle to get a case in front of a judge who might rule in a way that creates an eventual avenue to the Supreme Court. The Indiana law is not so much about making public policy that can be debated and clearly understood, as it is about teeing up a legal argument that leaves the dirty work of defining the line between religion and discrimination to five conservative justices. Any bets on how that comes down?
Indiana’s governor, in denying the discriminatory intent of the law in his state, said the new statute, “only provides a mechanism
to address claims, not a license for private parties to deny services.” Or perhaps more correctly, as Davidson writes, the Indiana law provides “a mechanism to discriminate, rather than a license. What it certainly will do is give some people more confidence to discriminate. But is that what Indiana really wants? And is that what the G.O.P.’s 2016 candidates should be looking for?”
Interestingly, in a debate that mirrors the on-going debate in Idaho (and elsewhere) over creating specific state-level prohibitions against discrimination directed toward gays and lesbians, the perfect fix for the Indiana dilemma is merely for the legislature to create such protections in law. So far that remedy, a specific statement of public policy opposed to discrimination, hasn’t been a serious part of the discussion in Indiana. Of course, Idaho continues to dance around that clear choice, as well. As this debate continues to unfold, Idaho policy makers might want to listen closely. It is not completely farfetched to think that Idaho could become Indiana.
But here is the ultimate political, indeed moral, bottom line: If you are reduced to arguing that something you have done in the name of “freedom” isn’t really designed to create an ability for some people to deny freedom – that’s what discrimination is – against some other people, while couching it all in the smoke of “restoring religion” you are likely on the wrong side of a very dubious argument, not to mention history.
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