Politics & Policy

Don’t ‘Fix’ Indiana’s RFRA

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Caught in the throes of the theatrical moral panic that followed Indiana’s passage of the Religious Freedom Restoration Act (RFRA), critics wailed that Governor Mike Pence had just signed a bill that would allow private companies to hide behind religious liberty when sued for violating Indiana laws protecting gays against discrimination. In their keening, they overlooked a key fact or two, one of which is that Indiana has no state laws protecting gays against discrimination.

It does have a handful of local ordinances, and there is the ever-present possibility of a judge “discovering” a right to use the force of the state to coerce Evangelical bakers into catering homosexual weddings or Catholic florists into garnishing the altars for same-sex unions — precedents in Colorado and elsewhere are very much what RFRA supporters had in mind when crafting the law.

Governor Pence has indicated that he intends to rush through legislation “clarifying” that Indiana’s RFRA does not permit discrimination against gays. At the state level, he is of course correct: There is no Indiana law against anti-gay discrimination with or without RFRA. Governor Pence’s remedy, on the other hand, could well amount to the creation of such a nondiscrimination statute, which is to say it would “solve” a non-problem by creating an actual problem.

RELATED: Indiana’s Law is Not the Return of Jim Crow

Gay people and people who object to the idea of homosexual marriage have been coexisting rather easily in Indiana for a great long while now, without the benefit of any state law telling them that this must be. (There are some local anti-gay-discrimination statutes, such as Indianapolis’s.) There are many ways to reach social settlements on matters of controversy, but a “Thou Shalt Not!” issued from the state legislature or from a judicial bench is rarely the most desirable method. Not every instance of social tension need result in litigation. Overheated Jim Crow rhetoric notwithstanding, there aren’t any anti-gay lynch mobs in the streets of Fishers, nor are there florists and bakers being compelled against their will to participate in same-sex wedding ceremonies — which is, of course, what this is all really about.

The gay-marriage movement, and the gay-rights movement more broadly, wants to establish as a legal and social principle that declining to participate in a same-sex wedding is the modern equivalent of refusing to seat black customers in a restaurant in Alabama in 1955 — a radically broad reading of the “public accommodations” doctrine of civil-rights law. We are not at all convinced that that comparison holds as a matter of principle, and we are absolutely convinced that it does not hold as a matter of fact. The social situation of gay couples in Indianapolis today is not very much like the social situation of blacks in Selma 50 years ago. The absolutist civil-rights rhetoric deployed here has obscured much more than it illuminates. On the issues that more closely resemble familiar civil-rights concerns — discrimination in housing and employment, for example — there is little or no evidence that Indiana has any problem requiring legislative remedy. But such laws do create new litigant categories, and the gay-rights movement has shown itself dedicated to pushing that advantage as far as it can — thus the absurd episodes with cake shops and florists.

RELATED: Freedom of Association Is Burned at the Stake in Indiana

#related#As anybody who has ever endured eleven minutes of Rachel Maddow’s program knows, the exercise of moral outrage is delicious to those with a taste for it. That taste is often indulged by corporate titans such as Apple’s CEO, Tim Cook — and Walmart’s CEO, Doug McMillon, who has just succeeded in pressuring Arkansas governor Asa Hutchison into sending a similar bill back to the legislature for revisions.

Such is the power of cheap outrage. But there is no cause for outrage or alarm in Indiana, inasmuch as the new RFRA does nothing to change the legal status of gays and at most puts a roadblock in the way of a judge who might consider a local ordinance and “discover,” as judges do, a right to coerce a baker to violate his conscience. Outrage and alarm very often cause people to say silly and untrue things, and Cook has in the matter of Indiana. Moral panic often precedes poorly thought-out pieces of legislation, so-called solutions that create problems rather than solve them. Governor Pence and the Indiana legislature should take a deep breath and do — nothing.


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