There are no kinder, more generous, more welcoming, more hospitable people in America than the people of Indiana, and there’s that song:
Back home again in Indiana,
And it seems that I can see
The gleaming candle light, still shining bright,
Through the Sycamores for me.
The new-mowed hay sends all its fragrance
From the fields I used to roam.
When I dream about the moonlight on the Wabash
Then I long for my Indiana home.
And then there’s the famous poet Ezra Pound:
From the fall of 1907 Pound taught Romance languages at Wabash College in Crawfordsville, Indiana, a conservative town that he called the sixth circle of hell, and an equally conservative college from which he was dismissed after deliberately provoking the college authorities. Smoking was forbidden, but he would smoke cigarillos in his office down the corridor from the president’s. He annoyed his landlords by entertaining friends, including women… He was eventually caught in flagrante, although the details remain unclear and he denied any wrongdoing. The incident involved a stranded chorus girl to whom he offered tea and his bed for the night when she was caught in a snowstorm; when she was discovered the next morning by the landladies, his insistence that he had slept on the floor was met with disbelief and he was asked to leave the college. Glad to be free of the place, he left for Europe soon after, sailing from New York in March 1908.
He never went back. It was London and then Paris. He helped discover and edit the work of T. S. Eliot, James Joyce, Robert Frost and Ernest Hemingway. He slapped their stuff into shape, and he was responsible for the 1915 publication of Eliot’s “The Love Song of J. Alfred Prufrock” and in 1918, Joyce’s Ulysses. His own poetry wasn’t bad either. He spent no further time dreaming of that moonlight on the Wabash. He had no use for that place or those people, and he hadn’t even dealt with the politicians.
Everyone knows the type. Barry Goldwater knew the type, and on the floor of the Senate, on September 16, 1981, he lit into such folks:
I’m frankly sick and tired of the political preachers across this country telling me as a citizen that if I want to be a moral person I must believe in “A,” “B,” “C” and “D.” Just who do they think they are? And from where do they presume to claim the right to dictate their moral beliefs to me? And I am even more angry as a legislator who must endure the threats of every religious group who thinks it has some God-granted right to control my vote on every roll call in the Senate. I am warning them today: I will fight them every step of the way if they try to dictate their moral convictions to all Americans in the name of “conservatism.”
What? Conservatives aren’t supposed to say such things, and Tom Jackson takes it from there:
Yes, THAT Barry Goldwater. The Arizona Republican whose reward for writing “The Conscience of a Conservative” – a surprise best-seller in 1960 – was to serve as his party’s sacrificial presidential nominee in 1964 when the nation ached to venerate the memory of the slain John F. Kennedy.
It was also 1964 when Goldwater cast what has been described, uniformly, as a “reluctant” vote against that year’s sweeping Civil Rights Act. A preaching and practicing anti-segregationist, Goldwater nonetheless recoiled from two provisions in the 1964 bill – public accommodation and fair employment – he regarded as unconstitutional meddling in the private sector.
We’ve been wrestling with the proper balance to those intrusions ever since…
That is a problem:
Goldwater spoke often and passionately about the need to treat each other equally, and he was on board with making sure government expunged discrimination from its policies, as well as those mandating discrimination in the private sector.
But he also figured Americans were endowed by their creator with the unalienable right to the dopiness of economic bigotry. Once laws requiring businesses to treat minorities differently – the heart of Jim Crow – were revoked, he reasoned, it was on employers and shopkeepers to decide whether to maintain their overtly prejudiced practices at the risk of creating opportunities for enlightened entrepreneurs eager to recruit well-qualified employees and customers regardless of background.
Some feel that way now, given what happened last week in Indiana:
Bucking intense criticism from citizens, celebrities, tech leaders, and convention customers, Indiana’s Republican Gov. Mike Pence quietly signed a controversial religious freedom bill into law on Thursday. Opponents warn the measure will sanction discrimination against LGBT people, and cost the Hoosier State millions in tourism revenue.
“Today I signed the Religious Freedom Restoration Act, because I support the freedom of religion for every Hoosier of every faith,” the governor said in a statement released shortly after he signed Senate Bill 101, otherwise known as the Religious Freedom Restoration Act (RFRA.) “The Constitution of the United States and the Indiana Constitution both provide strong recognition of the freedom of religion but today, many people of faith feel their religious liberty is under attack by government action.”
Ah, the evil government tells people of faith that they cannot turn away gay customers, or black customers, or short customers, depending on their religious beliefs about who is a sinner and must be cast out. Mike Pence thinks that’s an intrusion by government into religion, so this bill fixes that:
The new law will prohibit a governmental entity from substantially burdening a person’s religious beliefs, unless that entity can prove it’s relying on the least restrictive means possible to further a compelling governmental interest. It’s modeled off of the federal Religious Freedom Restoration Act (RFRA), which gained notoriety in the Supreme Court’s controversial Hobby Lobby ruling last year. That decision found that closely-held corporations wouldn’t have to comply with the Affordable Care Act’s contraception mandate if the owners had a sincerely-held religious objection to birth control.
Supporters say RFRA is designed to protect people’s religious beliefs from unnecessary government intrusion. But opponents argue the measure serves as a license to discriminate, particularly against LGBT people, on religious grounds.
Which is it? There is that 1993 Religious Freedom Restoration Act – and yes, Clinton signed that, but don’t blame him. Many on the left and the right were all for it at the time and Slate’s David Weigel explains why:
Cast your mind back to 1990… It’s April 17, and a 6–3 Supreme Court majority is ruling against Native Americans who ingested peyote as part of a religious service, then lost their jobs for doing drugs.
One justice added this:
“Precisely because ‘we are a cosmopolitan nation made up of people of almost every conceivable religious preference,'” wrote Antonin Scalia, quoting from Braunfeld v. Brown, “and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule that respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.”
Scalia was being the separation-of-church-and-state liberal here. We can’t have everyone claiming certain pesky laws don’t apply to them, because of their particular and unique religious beliefs, but that led to the new legislation saying that yes, we certainly can:
Three years later, after Bill Clinton becomes president, the Democratic Congress quickly passes the Religious Freedom Restoration Act. According to the new law, “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” It is generally understood that this will prevent religious minorities from being unfairly fired, like those poor peyote-takers were.
The new law made Justice Scalia’s opinion moot. Native Americans who ingest peyote harm no one – let them be. If the government is going to restrict religious practices, and forbid some, they’d now have to come up with a compelling reason to do so – public safety or something or other. Rules may apply to all, general applicability as the statute says, but not really. Religious freedom matters more than the law, unless the government can prove, conclusively, that in any particular case that it doesn’t. The burden of proof was now on the government, and that was a change – and life went on. No one thought about this much ever again.
That was a time bomb, and in June 2014, that time bomb kind of exploded:
A sharply divided Supreme Court ruled Monday that some companies with religious objections can avoid the contraceptives requirement in President Barack Obama’s health care overhaul, the first time the high court has declared that businesses can hold religious views under federal law.
The justices’ 5-4 decision, splitting conservatives and liberals, means the Obama administration must search for a different way of providing free contraception to women who are covered under the health insurance plans of objecting companies.
Justice Samuel Alito wrote in his majority opinion, over a dissent from the four liberal justices, that forcing companies to pay for methods of women’s contraception to which they object violates the 1993 Religious Freedom Restoration Act.
That framework was set down in the Clinton administration, but no one saw this coming, but Justice Alito explained it all in the majority opinion:
Alito held that this provision of the health care law, as applied to Hobby Lobby, ran afoul of the terms of the Religious Freedom Restoration Act (RFRA), a 1993 law signed by President Bill Clinton which says the government may not “substantially burden a person’s exercise of religion,” unless it has a “compelling” justification and has used “the least restrictive means” available.
“Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained,” Alito continued, “it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test.”
That’s what Mike Pence was thinking about. Entities that employ workers, corporations, can have religious beliefs, and they can skip any part of the law that offends those beliefs. They can refuse to provide a benefit mandated by law, if providing that benefit would condemn their soul to hell, presuming corporations have souls. It seems they do, at least under law. Pence was just extending the argument, pretty much to all commercial interactions, and employment practices, and schools and such. They have that unalienable right to the dopiness of economic bigotry, now guaranteed by state law. Barry Goldwater would understand.
That’s a fine theory, but it all blew up:
Gov. Mike Pence called off public appearances Monday and sports officials planned an “Indy Welcomes All” campaign ahead of this weekend’s NCAA Final Four in Indianapolis as lawmakers scrambled to quiet the firestorm over a new law that has much of the country portraying Indiana as a state of intolerance.
Republican legislative leaders said they are working on adding language to the religious-objections law to make it clear that the measure does not allow discrimination against gays and lesbians. As signed by Pence last week, the measure prohibits state laws that “substantially burden” a person’s ability to follow his or her religious beliefs. The definition of “person” includes religious institutions, businesses and associations.
“What we had hoped for with the bill was a message of inclusion, inclusion of all religious beliefs,” Republican House Speaker Brian Bosma said. “What instead has come out is a message of exclusion, and that was not the intent.”
If the act allows and protects exclusion, what else would people think? They didn’t think nice thoughts:
“They’re scrambling to put a good face on a bad issue. What puzzles me is how this effort came to the top of the legislative agenda when clearly the business community doesn’t support it,” said Bill Oesterle, an aide to Republican former Gov. Mitch Daniels and CEO of consumer reporting agency Angie’s List, which canceled expansion plans in Indianapolis because of the law.
Indianapolis Mayor Greg Ballard, a Republican, said the law threatens to undermine the city’s economic growth and reputation as a convention and tourism destination and called for lawmakers to add protections for sexual orientation and gender identity to Indiana civil-rights laws.
“I call upon Governor Pence and the Indiana Legislature to fix this law. Either repeal it or pass a law that protects all who live, work and visit Indiana. And do so immediately. Indianapolis will not be defined by this,” Ballard said.
But after a two-hour private meeting of House Republicans, House Speaker Bosma said that repealing the law isn’t “a realistic goal at this point” – they all like the idea of protecting religion. Conservative Christians have a problem with gays. Do we tell them their religious beliefs don’t matter? It’s 1993 again:
Republican Senate President Pro Tem David Long stressed that the new law is based on the federal Religious Freedom Restoration Act of 1993, which has been upheld by courts.
“This law does not and will not be allowed to discriminate against anyone,” Long said.
But the Human Rights Campaign said it’s disingenuous to compare the two laws.
The campaign’s legal director, Sarah Warbelow, said the federal law was designed to ensure religious minorities were protected from laws passed by the federal government that might not have been intended to discriminate but had that effect.
The Indiana law, she said, allows individuals to invoke government action even when the government is not a party to a lawsuit. It also allows all businesses to assert religious beliefs regardless of whether they are actually religious organizations.
This needs to be settled:
Meanwhile, the fallout continued. The public-employee union known as AFSCME announced Monday it was canceling a planned women’s conference in Indianapolis this year because of the law. The band Wilco said it was canceling a May performance. Virginia Gov. Terry McAuliffe issued an open letter to Indiana corporations saying Virginia is a business-friendly state that does “not discriminate against our friends and neighbors,” while Chicago Mayor Rahm Emanuel sent letters to more than a dozen Indiana businesses, urging them to relocate to a “welcoming place to people of all races, faiths and countries of origin.”
Half the corporations in America are now walking away from Indiana too, so this is a problem, but CNN reports on how this is a problem for the Republican Party:
The party’s leaders – and potential presidential candidates – risk alienating young voters and important allies in the business sector by fully embracing the law. But criticizing the legislation would guarantee the wrath of evangelical leaders who are crucial in early-voting states like Iowa. …
“Nobody is saying that it should be legal to deny someone service at a restaurant or at a hotel because of their sexual orientation. I think that’s a consensus view in America,” Florida Sen. Marco Rubio said on Fox News. “The flip side is, should a photographer be punished for refusing to do a wedding that their faith teaches them is not one that is valid in the eyes of God?”
Jeb Bush also backed Indiana’s law, telling conservative radio host Hugh Hewitt that “Governor Pence has done the right thing.”
“This is simply allowing people of faith space to be able to express their beliefs – to be able to be people of conscience,” Bush said. “I think once the facts are established, people aren’t going to see this as discriminatory at all.”
Franklin Graham, the evangelical preacher, and presidential contenders Rick Santorum, Bobby Jindal and Ben Carson also backed the Indiana bill on Monday.
Other Republicans don’t agree:
Scott Smith, the former GOP mayor of Mesa, Arizona, who opposed his state’s religious freedom bill, said he was “surprised” that some Indiana Republicans seemed unprepared for the level of backlash against the law.
“If Republicans truly want to expand their base and broaden the tent, they have to avoid these kinds of situations,” Smith said. “There’s no doubt that Republican candidates would be better off not being drawn into this kind of dialogue. They had nothing to do with Indiana.”
Pence tried to regain control over the situation on Monday night, arguing in a Wall Street Journal op-ed that the law doesn’t open the door for discrimination.
“If I saw a restaurant owner refuse to serve a gay couple, I wouldn’t eat there anymore,” Pence wrote. “As governor of Indiana, if I were presented a bill that legalized discrimination against any person or group, I would veto it. Indiana’s new law contains no reference to sexual orientation. It simply mirrors federal law that President Bill Clinton signed in 1993.”
It’s harmless, really it is, but Republicans have to make a choice now:
Bob Vander Plaats, an Iowa conservative power broker who supports Indiana’s law, said religious liberty will be a key issue in 2016.
“No one’s going to be able to walk away from this issue,” Vander Plaats said, adding that a Republican candidate that doesn’t support the Indiana law “will not be the nominee.”
There may be a problem with that. George Stephanopoulos tried really hard on his Sunday morning talk show to get Mike Pence to clarify the intent of his state’s new religious freedom bill, and that didn’t go well:
Stephanopoulos: I’m just bringing up a question from one of your supporters talking about the bill right there. It said it would protect a Christian florist. Against any kind of punishment. Is that true or not?
Pence: George, look… You’ve been to Indiana a bunch of times. You know it. There are no kinder, more generous, more welcoming, more hospitable people in America than in the 92 counties of Indiana. Yet, because we stepped forward for the purpose of recognizing the religious liberty rights of all the people of Indiana, of every faith, we suffer under this avalanche for the last several days of condemnation and it’s completely baseless. …
Stephanopoulos: So when you say tolerance is a two-way street, does that mean that Christians who want to refuse service, or people of any other faith who want to refuse service to gays and lesbians, that’s legal in the state of Indiana? That’s a simple yes or no question.
Pence: George, the question here is, is if there is a government action or law that an individual believes impinges on their freedom of religion, they have the opportunity to go to court… This is not about disputes between individuals. It’s about government overreach. And I’m proud that Indiana stepped forward. And I’m working hard to clarify this.
He was also tap-dancing, and Garrett Epps at the Atlantic Online suggests this guy doesn’t know his own law:
The Indiana statute has two features the federal RFRA – and most state RFRAs – do not. First, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.” The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs except South Carolina’s; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.
The new Indiana statute also contains this odd language: “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” Neither the federal RFRA, nor 18 of the 19 state statutes say anything like this; only the Texas RFRA, passed in 1999, contains similar language.
This is a big deal:
What these words mean is, first, that the Indiana statute explicitly recognizes that a for-profit corporation has “free exercise” rights matching those of individuals or churches. A lot of legal thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Stores, in which the Court’s five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employees’ statutory right to contraceptive coverage.
Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government. Why does this matter? Well, there’s a lot of evidence that the new wave of “religious freedom” legislation was impelled, at least in part, by a panic over a New Mexico state-court decision, Elane Photography v. Willock. In that case, a same-sex couple sued a professional photography studio that refused to photograph the couple’s wedding. New Mexico law bars discrimination in “public accommodations” on the basis of sexual orientation. The studio said that New Mexico’s RFRA nonetheless barred the suit; but the state’s Supreme Court held that the RFRA did not apply “because the government is not a party.”
That’s the big difference:
Language found its way into the Indiana statute to make sure that no Indiana court could ever make a similar decision. Democrats also offered the Republican legislative majority a chance to amend the new act to say that it did not permit businesses to discriminate; they voted that amendment down.
Kevin Drums sums up the net effect:
Hoosiers may indeed be the kindest and most welcoming folks in the country, but that cuts no ice in court. In court, any business can claim that it’s being discriminated against if it’s forced to sell its services to a gay couple, and thanks to specific language in the Indiana statute, no court can throw out the claim on the grounds that a business is a public accommodation.
That’s different from other RFRAs, and it’s neither especially kind nor welcoming. Indiana has taken anti-gay hostility to a new and higher level, and Pence and his legislature deserve all the flack they’re getting for it. They should be ashamed of themselves.
On the other hand, if you’re thinking of running for president, I guess it’s a great entry in the base-pandering, more-conservative-than-thou sweepstakes. So at least Pence now has that going for him.
None of this should be surprising. Talking Points Memo reminds us of who Mike Pence is:
In 2014, he said the question of same-sex marriage should be left up to the states rather than the federal government.
“In the state of Indiana, marriage is recognized as between a man and a woman, and I think that’s how it should remain,” Pence said in 2014 in an interview with MSNBC’s Chuck Todd.
However, after a federal appeals court ruling halting another court’s ruling striking down the state’s gay marriage ban, he also vowed that the state would not recognize same-sex couples.
Pence took the Indiana governor’s mansion in 2013, following his time in the House of Representatives, where he made opposition to gay rights in general, and gay marriage in particular, his standard practice.
In 2010, Pence signed an open letter by the anti-gay marriage Family Research Council that ran in Politico and the Washington Examiner expressing support for organizations that oppose same-sex marriage and “protect and promote natural marriage and family.” (A year earlier, the FRC’s Tony Perkins praised Pence for joining a private briefing with local pastors on efforts to pass a traditional “marriage protection amendment.” Perkins praised Pence as a “solid ally on this issue in the U.S. House.”)
In December 2010, Pence appeared on CNN and argued against repealing Don’t Ask, Don’t Tell, the official U.S. military policy that governed service by gays and lesbians. He said that repealing the act would be using the American military “as a backdrop for social experimentation.”
“So I don’t believe the time has come to repeal Don’t Ask, Don’t Tell,” Pence said. “I really believe our soldiers that are at the tip of the spear know that. We ought to put their interests and the interests of our national security first.”
Not surprisingly, during his time in the House, Pence voted “yes” on legislation defining marriage as only between one man and one woman, and he opposed legislation that prohibited workplace discrimination based on sexual orientation.
In 2011, an opinion piece by Wendy Kaminer in The Atlantic quoted Pence arguing that the Employment Non-Discrimination Act “wages war on freedom of religion in the workplace.”
Pence has said he doesn’t regret signing the law. He knows what he’s doing, and Talking Points Memo points to another part of the George Stephanopoulos interview:
Stephanopoulos also asked Pence if he would support adding sexual orientation to the group of protected classes listed under the state’s civil rights laws. Critics of Pence’s law point out that other states may have similar religious freedom laws but also include sexual orientation under protected classes.
“I will not push for that, that’s not on my agenda and that’s not been an agenda of the people of Indiana,” Pence said.
There are no kinder, more generous, more welcoming, more hospitable people in America than the people of Indiana, with exceptions. For some it will now be that sixth circle of hell that Ezra Pound found. But he left. Not everyone can. When they dream about that moonlight on the Wabash they’re in a nightmare.