Matt McDaniel

8 minute read

If you’ve been following the news at all over the past few days, the legislature in Indiana, along with Governor Mike Pence, enacted a law aimed at the protection of religious conscience in the marketplace. Let’s be abundantly clear: the “Religious Freedom Restoration Act” (RFRA) in Indiana was meant as anti-gay legislation. The timing of the law in the of the larger discussion over the rights of gays and lesbians leads to no other conclusion. On September 4, 2012, the United States Court of Appeals for the Seventh Circuit struck down gay marriage bans in Indiana and Wisconsin. As a consequence, though no voter had approved it, gay marriage became tacitly legal in both states. Indiana’s version of RFRA was introduced as soon as the Indiana legislature reconvened this year. Let’s not kid ourselves that, even if there is spin that this is not a direct challenge to the Federal Courts under the guise of religious protection, it certainly can be interpreted that way.

The point of this piece isn’t to reflect on the text of the law. There are plenty of commentaries around that are ripping Indiana apart for the attempt to push through thinly-veiled discrimination, defending the law through rhetorical contortions to make it seem that the law is neutral to homosexuals, or offering dispassionate views about how the outrage over Indiana’s law fails to take into account the other nineteen states with similar laws. Indiana’s version of RFRA generally drops the pretense of religious protection in favor of allowing conscience-based discrimination.

Regardless of your opinion regarding the conscience rights of business owners or on the rights of gays and lesbians to marry, Indiana’s RFRA is bad politics. As mentioned, there are numerous other states, and the Federal Government, that provide similar protections (albeit not to the point of allowing businesses to refuse services based on religious objections) to the ones now in effect in Indiana. The issue with Indiana’s RFRA is that it further polarizes the discussion over the rights of gays and lesbians. Realistically, the Supreme Court, whether you agree or not, is likely to determine that the proverbial wheel of history has turned and make same-sex marriage the law of the land in June. I could be wrong, but I’d even give you a vote of 6-3 (Kennedy and Roberts in the majority) in favor of the Opinion. Even if this particular case is not as Alexandrian as I have suggested, with the majority of Federal Appeals Courts breaking in the direction of equality, the issue of inevitability becomes apparent.

With this likely reality in mind, we turn to Indiana’s RFRA. If, but most likely when, gay marriage becomes the law of the land, there will be a rush in “red” states to protect what voters feel to be religious rights. If we’re being honest, baking a cake for a gay couple really shouldn’t be the make-or-break issue that defines our time. However, religious groups point out that erosion of conscience protections could seep into actual Church functions. What of the minister who refuses to marry a gay couple because of religious objections?

At the moment, most advocates of gay marriage will tell you flatly: if your minister doesn’t want to marry us in your Church, we don’t want to be part of your Church anyhow. Likewise, many states that have enacted same-sex marriage through referenda have provided for protections of religious institutions (like established Churches) that can respectfully decline to officiate marriages that they feel are against the teachings of their respective beliefs.

All of this aside, Indiana’s RFRA was terrible optics. Already backpedaling, Indiana’s legislature has been slammed by prominent business interests from across the country. Whether or not these businesses are correct or not is, frankly, irrelevant. They have made up their minds that Indiana is on the wrong side of history. Through the free market, they will force Indiana to change the law.

On one hand, this is ideological bullying. On the other, this is a clear example of the free market working to change a law. As expressed above, the timing of Indiana’s RFRA is extremely suspect given the climate. Regardless of my underlying opinion on Indiana’s law, I applaud the libertarian-minded approach to the eventual scaling back of the law. Rather than go to court and seek to bog down the law’s implementation or engage in a costly recall election fight, the people are making their displeasure known through economics and personal decision-making. Now, this is a rosy picture of what’s actually going on. In a sense this “libertarian” revolt is little more than outside business interests in bed with major and well-financed lobbyists pushing east-and-west coast morality on an independent state. The question, then, is: which do you prefer? Should decisions regarding the legality of RFRA stay with judges and politicians, or should the ultimate direction of the future of the nation be shaped by business interests that have profit as a motivation?

With this cynical outlook, we turn to Governor Mike Pence standing at the epicenter of the controversy. Governor Pence has, up until this point, been one of my strongest “dark horse” candidates for President. Almost entirely scandal-free with a powerhouse state economy, friends in Washington, and the ability to fundraise, Pence is an excellent contender for the White House either in this election or in 2020. That is, he would have been an excellent contender, if not for the rollout of Indiana’s RFRA. It almost seems like Governor Pence has been surprised by the pushback against the law. Without weighing in on the truth or falsity, morality or immorality, of the law itself, being so caught off-guard and without any ability to spin a positive story, is a baffling political swing-and-a-miss. What it tells me is that Pence thought this was just going to be a story that boosted his conservative bona fides in a potential White House run. He, or his people, thought that passing a version of RFRA would send a message that Pence had conservative credentials and that he could say in a Republican debate that he was a governor who had taken steps to protect conscience exceptions to the spread of same-sex marriage.

Hearkening back to an earlier point, remember that the Seventh Circuit decision invalidated both the Indiana and Wisconsin marriage laws. Obviously, Pence needed to be at least on par with Governor Walker, the current governor of Wisconsin and early frontrunner in the Republican race for the nomination in 2016. Likewise, passing the most ambitious RFRA in the nation would allow Pence to show that he has the political chops to govern in a more conservative way than any of the other several current and former GOP governors running for President.

Unfortunately for Pence, this strategy both succeeded and failed miserably. In an instant, Pence went from being a generally-scandal-free Governor with all the right boxes checked to a polarizing ideologue. While Pence the man hasn’t changed at all, Pence the media figure has been caricatured. In one sense, Pence has succeeded. He now has vocal and passionate support from the right. The “grassroots” that see or imagine that the religious or moral foundation of the nation is decaying before their eyes can see a champion-martyr in Pence. While the Indiana legislature is likely to scale-back their version of RFRA and the clamor over the law will die down, Pence will now be in the national mind as governing against the spread of gay and lesbian rights.

Now there are some on the right who think: good, we need someone who will stand up to the decay of our nation’s morality. That’s a consistent and noble view. However, from a dispassionate look at the statistics, that view has decreasing viability as a governing principle. Rather than embrace the “progressive” view that these new rights should be forcibly imposed by government, the libertarian view, that people should be able to freely associate and generally be free of government intrusion, would solve a great deal of the animosity over this issue.

What Pence and the Indiana legislature thought was the right decision to score political points was rolled out poorly, had no planned defense, and got caught by economic reprisals. It looks unlikely that Pence’s 2016 chances can recover from this kind of an early hit. While he could still be a player in the GOP primary, it looks increasingly like Governor Pence has been marginalized on a national level.

It still remains to be seen if increasingly stringent RFRA provisions are going to be the next battlefield in the perceived fight for the nation’s moral center. However, if current appellate court decisions are any indicator of the future success of enhancing RFRA laws, it seems that this could be a non-starter. While there is some hope for religious groups that they can draw from the Hobby Lobby decision from the Supreme Court (generally holding that companies can have religious beliefs and shouldn’t be forced to violate them), the national mindset, rightly or wrongly wrapped around the fingers of powerful business and media interests, may leave proponents of legislating morality in the dust. If there’s a good way to defend religious freedom as democracy turns against that view of society, it is through embracing a libertarian model where individual rights and liberties take precedence over the power of government-enforced morality.