When Indiana governor Mike Pence signed a religious-liberty-protection statute into law this past week, he probably didn’t expect the activist backlash and accusations that he’d just endorsed or legalized discrimination. In part, that would be due to the fact that dozens of states and the federal government have had similar laws for years and there’s been no epidemic of discrimination against gays and lesbians. Now, Indiana’s law is not quite identical to the federal law (the Religious Freedom Restoration Act of 1994) — Josh Blackman is going to expound on this for NR soon — or to state laws, one of which Barack Obama voted for in Illinois as a state senator, but it is quite similar.
The White House, which has made its objection to the Indiana law clear, isn’t highlighting differences between the statute Obama supported in the 1990s and the one Pence just signed. This morning on ABC’s This Week, White House spokesman Josh Earnest said the seeming discrepancy is just because times have changed. “If you have to go back two decades to justify something that you’re doing today,” Earnest said, “it may raise some questions about what you’re doing.”
This is a weak, unserious argument. Of course, Obama’s position on some issues seems to have changed since he was a state senator, just as, for instance, Bill Clinton now opposes the Defense of Marriage Act he signed in the ’90s. But if the White House’s argument is that he now feels a law like Indiana’s is wrong, then he should support the repeal of laws like it at the state level, too. The fact that he isn’t, and no one else really is, either, gets to why the hysteria over religious-liberty laws is a sham: They don’t protect or encourage any noticeable level of discrimination against homosexuals; they just provide assurances that the power of the state can’t be brought to bear to make citizens violate their consciences. The laws seem to have succeeded at that, which is why their existence hasn’t aroused any controversy. If the White House or liberals have an argument as to why Indiana’s law is likely to have a different effect, they should make it, rather than blathering without any evidence about legalized discrimination.