The Corner

Notes on Indiana

1. I have a post at Bloomberg defending the new Indiana law on religious freedom from Apple CEO Tim Cook, who wrote an incendiary and misleading op-ed.

2. The Republican party seems to be responding more favorably to the new law than it did during the 2014 ragefest against a similar proposed law in Arizona. I suspect this has something to do with the presidential campaign starting, and something to do with conservatives’ increasing alertness to religious-liberty issues.

3. Nonetheless Governor Pence is under a lot of pressure, and today suggested that the legislature send him a bill clarifying that religious freedom will not allow businesses to refuse service to anyone. It is far from clear what that would mean — and therefore whether it would either undercut religious freedom or assuage the critics. It seems more likely to do the former than the latter.

4. Pence has been widely criticized for his interview with George Stephanopoulos on Sunday, and has himself said he could have done better. Two criticisms, though, miss the mark. He allegedly dodged Stephanopoulos’s repeated question about whether a florist in Indiana could now refuse to serve a gay couple without fear of punishment. In those parts of Indiana where there is a general legal command not to discriminate on the basis of sexual orientation, and where the religious-freedom law might therefore operate to modify that command, it would be up to the courts to apply the tests outlined in the law. Stephanopoulos was wrong to demand a yes-or-no answer and Pence was right not to provide one.

Pence also told Stephanopoulos that the law “does not apply, George, to disputes between individuals unless government action is involved.” Paul Waldman, writing for the Washington Post, says that claim is “completely false” because the law explicitly covers litigation where the government is not a party to the case. Pence is right, though, because government action can be involved even when government is not a party to the case. Discrimination suits are a good example: It’s government action — banning classes of discrimination — that creates the basis for the suit. But the issue could come up in other contexts as well. If a government should not be allowed to pass a law forcing Catholic physicians to commit abortions, it should not be allowed to create a right to sue them for failing to commit abortions. And a law meant to protect religious freedom should protect against both forms of coercion.

5. Many critics of the law are saying that while it may be very similar to past religious-freedom laws, its intent was hateful: It was motivated by the desire to protect acts of discrimination against gays. That sounds to me like a better argument against the lawmakers than against the law. But I suspect that the lawmakers did not have in mind protecting discrimination based on sexual orientation in general: a type of discrimination that is almost always wrong, even if it is legal in Indiana. They had in mind, I take it, situations like that of the baker who is happy to serve gay couples but unwilling to make a wedding cake for them. I think the baker should be free to do that (and others should be free to criticize or boycott him). I don’t think that it’s hateful or bigoted for the baker to take that view, or for others to think he should be free to act on it.

6. Should Indiana prohibit discrimination based on sexual orientation? Our hypothetical baker would still have this religious-freedom law as a possible protection. I tend to think, though, that anti-discrimination law should be scaled back rather than expanded. Our default rule should be freedom of association; discrimination based on race should be illegal because of well-known features of our history that required that ban.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.


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