The “religious freedom” law signed last week by Gov. Mike Pence was an act of defiance against the inevitability of same-sex marriage in Indiana and across the United States. It was a face-saving gesture, a nearly toothless victory for the gay marriage opponents invited to the bill-signing ceremony. And it backfired in a big way, prompting boycotts against the state and condemnations from such red-state institutions as NASCAR.
Pence seems realistic enough not to have hoped that the law would represent some kind of turning point against same-sex marriage (which will probably be legalized nationwide by the Supreme Court this spring) or gay rights in general. Where he went wrong was thinking that the vague and confusing law would be given a pass in the court of public opinion.
Pence is now calling for the Religious Freedom Restoration Act to be “fixed” to clarify “that this law does not give businesses the right to deny services to anyone,” and Arkansas Gov. Asa Hutchison said he will not sign a bill with language similar to that in Indiana. Proponents of the new laws say they merely want state versions of a 1993 federal law protecting the right to practice religion (written in response to the case of Native Americans fired from their jobs for taking peyote in religious rites), but the Washington Post’s Mark Berman writes, “these new bills say that companies can have the same religious rights as individuals, which opponents say could be used to let businesses discriminate against gay couples.”
I don’t think Pence wanted or expected the law to result in thousands of Indiana businesses refusing gay and lesbian customers. As Vox German Lopez notes, Indiana was already one of 29 states without a law banning discrimination on the basis of sexual orientation; the new law simply reminded everyone of that fact and unwisely dared the LGBT community and its allies to try to do something about it.
Almost everyone agrees that a proliferation of NO GAYS ALLOWED signs would be terrible for Indiana’s image. The law seemed more about assuring business owners that they would keep the right to say, “We could refuse to serve you, so be grateful that we’ve decided to be neighborly and tolerant instead. Don’t push it.”
On the rights and privileges of small businesses
One of the less-noted aspects of the Indiana law is how neatly it fits the Republican Party’s veneration of small-business owners, which may have blinded state legislators to wider public opinion. Most of the stories about how same-sex marriage supposedly threatens religious freedom involve mom-and-dad businesses—bakeries, florists, photographers—whose owners want to deny services to gay couples. (Are the providers of rentable tuxedos and foldable chairs about to get into the mix?) We don’t hear much about, say, hotel employees whose religious beliefs compel them to deny single-bed rooms to same-sex couples, or unmarried couples of all kinds. Would it be religious discrimination to fire a desk clerk who turns away sinful customers? What if he refuses to give extra room keys to women, in the sincere belief that women shouldn’t be going outside without their husbands?
Many feel that small-business owners have earned the right to operate by their own rules; this belief was part of the furor over President Barack Obama’s “you didn’t built that” speech. But consider a small town with a baker and florist on its main street, and think what would happen if Walmart or Whole Foods tried to open a superstore nearby that would serve cakes and flowers with more selection and cheaper prices. The independent baker and florist might ask the local government not to give Walmart the zoning variance it needs to open, or not to build an access road to the new store, or not to exempt the giant retailer from restrictions on the size of its signs. And the local government, backed by a majority of citizens, could very well decide to protect the independent baker and florist from corporate competition. Helping the little guy is an American tradition in states both red and blue!
Is it fair to accept this assistance, along with the public parking and the other amenities a town provides to boost its business districts, and then declare that a certain group of taxpayers is not welcome in your store? It would be wrong, and unconstitutional, for a local government to discriminate against someone who wants to open a Christian bookstore next to the Starbucks on Main Street, but the bookstore would not have the right to refuse service to non-Christians interested in its wares. Similarly, a gay bookstore would not have the right to close its doors to known opponents of same-sex marriage.
The deference to small-business owners also comes from the confidence that the free-market system will work things out for the betterment of everyone: businesses that refuse customers will be at a competitive disadvantage, allowing for other businesses to open up and meet the unmet demand. This principle utterly failed to end common discrimination against African-Americans, necessitating federal civil rights laws and explaining why religious-freedom laws apparently have little support among black voters. FiveThirtyEight’s Harry Enten cites polls showing that only 39 percent of African-Americans support same-sex marriage, below the national average, but 61 percent of African-Americans favor laws requiring businesses to serve same-sex couples.
The precedents of racism
Black Americans are certainly aware that religious beliefs have been used to justify racism and segregation in the United States. Last year Ian Millhiser wrote a history of this practice for ThinkProgress, noting, “Ross Barnett won Mississippi’s governorship in a landslide in 1960 after claiming that ‘the good Lord was the original segregationist.’” Theodore Bilbo, a U.S. senator from Mississippi, similarly wrote, “[p]urity of race is a gift of God.... And God, in his infinite wisdom, has so ordained it that when man destroys his racial purity, it can never be redeemed.”
Many opponents of same-sex marriage object to the comparison with interracial marriage. The Heritage Foundation’s Ryan T. Anderson wrote last year, “Race has nothing to do with marriage, and laws that kept the races apart were wrong. Marriage has everything to do with uniting the two halves of humanity—men and women, as husbands and wives and as mothers and fathers—so that any children that their union produces will be united by the man and woman who gave them life.” For this reason, many churches will never agree to host same-sex marriage ceremonies, and the Constitution protects their right of refusal.
But it’s impossible to separate any civil rights laws from the history of racism in the United States. Our definitions of, and the remedies for, any unconstitutional discrimination are based on the precedents of racial desegregation. Again, this is why “let the free market sort things out” is so discredited as an argument against anti-discrimination laws. It’s been tried and it failed.
Anderson also writes, “Whatever one believes about marriage and however government defines it, there is no compelling state interest in forcing every citizen to treat a same-sex relationship as a marriage when this would violate their religious or other conscientious beliefs.”
But all kinds of marriages violate certain individuals’ “conscientious beliefs,” including interracial and interreligious unions, as well as marriages involving divorced persons or those with significant age differences. Where same-sex marriage is legal, there is no logical reason to treat it differently. It is irrelevant that more people currently object to same-sex marriages than to interracial marriages, or that they are generally more eloquent and well mannered than hard-core racists. There is indeed a compelling state interest in treating all legal marriages equally when it comes to laws on public accommodations, job discrimination, access to medical care, and the like.
To do otherwise invites chaos and confusion, as Mike Pence inadvertently proved last week.