The Battle of Indiana

17 minute read

In war–whether a shooting war or a culture war makes no difference on this point–only some of the battles are carefully planned.

Others explode as if from nowhere. A little skirmish or rearguard action can quickly turn into a major collision, a Battle of Gettysburg, for example.

Something like that happened in Indiana during the last days of March. A bill in the state legislature, a mostly symbolic last stand by routed conservatives opposed to same-sex marriage, triggered a massive response from gay-rights advocates. Governor Mike Pence’s signature on his state’s Religious Freedom Restoration Act (RFRA) looked at first like a successful raid on competing social conservatives in the crowded field of Republican presidential hopefuls.

But just over the ridge lay every weapon in the progressive arsenal, from the sniper fire of social media to the siege guns of business and celebrity. Apple CEO Tim Cook protested the law on behalf of the world’s most valuable company. Basketball Hall of Famer Charles Barkley wondered if Indianapolis was still fit to host the NCAA’s much watched Final Four, set to begin less than two weeks after Pence signed the bill into law. Suddenly, more than two decades of painstaking work to attract jobs and tourists to the Hoosier State was being pounded to rubble, moving the state’s largest newspaper–the Indianapolis Star–to bugle retreat in a front-page editorial. Fix this now, the paper headlined in World War Three font. “Indiana is in a state of crisis,” the editors warned the governor. “It is worse than you seem to understand.”

As a shaken Pence and state lawmakers scrambled for a way out, in charged the Arkansas legislature like Tennyson’s Light Brigade–at least that’s how it looked to beleaguered traditionalists in search of defiant heroes. A bill virtually identical to the Indiana law landed on the desk of Governor Asa Hutchinson, a business-minded Republican whose promise to sign it drew fire from the Bentonville battalions at Walmart headquarters. Citing “the benefits of diversity and inclusion,” CEO Doug McMillon urged on behalf of the world’s largest retailer that Hutchinson reverse course and issue a veto, and on April 1, the governor announced that he would insist on changes.

Why tangle with such foes? Given the apparent readiness of the U.S. Supreme Court to legalize same-sex marriage nationwide later this year, social conservatives have no prospect of a substantial victory. The culture war over gay rights is largely decided; what remains is the mainly rhetorical question of whether a florist or baker or photographer can refuse, on religious grounds, to supply a wedding bouquet where there is no bride, or a celebratory cake without a groom on top.

RFRA laws, in this context, are seen by supporters as protection for traditional convictions, and by opponents as a protection for bigotry. This conflict is mainly rhetorical because, with the exception of a very few exceedingly well-publicized cases (none involving couples from Indiana or Arkansas), the businesses that make up America’s $50 billion wedding-industrial complex in fact appear delighted to welcome their new customers. The number of ceremonies rendered cakeless or flowerless by hatred is, as far as we know, zero.

But symbols count, and the ones at stake in this unexpected clash are significant in a number of ways. It’s one thing for Cook, the openly gay leader of a high-end, design-conscious consumer-goods and retail company, to align himself, his board and his employees with LGBT priorities. It’s another thing to see McMillon, a Jonesboro, Ark., native with a wife and two sons, do the same with a company whose roots are firmly in small-town America. While Apple recently announced a deal to do business in Saudi Arabia, where homosexuals are subject to being imprisoned, flogged or even executed, it is clear that corporate America has decided that in the U.S., gay rights are the future. Their judgment is shared by local politicians like Indianapolis Mayor Greg Ballard, a Republican who reacted to Pence’s signature by reaffirming the city’s antidiscrimination ordinance, and by local business leaders like the Little Rock Chamber of Commerce.

But if traditionalism is bad business, it may still be tempting politics for candidates navigating the tempest in the GOP. The race for the 2016 nomination is both crowded and wide open–rarely the case in Republican presidential politics. The eventual winner will likely be the candidate who galvanizes a fragment of the GOP’s base–the country clubbers or the libertarians or the social conservatives–while minimizing the resentment stirred up inside the other factions.

Sounds easy enough, but the RFRA battle shows otherwise. Pence may have helped himself with social-issue Republicans by signing a bill in defense of their cherished symbols, but by doing so he damaged himself with Republicans from the Chamber of Commerce and libertarian factions. To cave or not to cave? Whether ’tis nobler in the GOP to embrace the changing mood of the country or fight to the last soldier for endangered values: that is the question, and Indiana is proof that it won’t easily be answered.

Another lesson could be drawn from the whiplash that traditional religious Americans may be feeling in the last weeks before one of the world’s central institutions–marriage–appears set to receive its official revision in the Supreme Court. This revolution has been 25 years coming, but a quarter of a century is a finger snap in the millennia of human history. And for half of those 25 years, the traditionalists had reason to believe that they were winning. Now this issue divides Republicans, but for many years it split the Democrats. It was Democratic President Bill Clinton who signed the original RFRA in 1993 and the traditionalist Defense of Marriage Act in 1996. Another Democrat in the White House, President Barack Obama, opposed same-sex marriage until 2012. And the current front runner for the 2016 party nomination, Hillary Clinton, kept up her opposition even longer.

When advocates for same-sex marriage were a small but vocal minority, they were at pains to say that they weren’t interested in changing the religious definition of marriage–only the civil laws. The Battle of Indiana shows how difficult it is to draw such a clear line. Scripture speaks to every historical hot-button issue, from slavery to dietary laws, from veils to virginity, from vengeance to forgiveness. The sacred texts bump up against the civil law, not always gently.

From its earliest days, the U.S. has struggled to balance church and state, religious faith and individual freedom, the sacred and the secular. With so much wind under their wings, proponents of LGBT rights have moved the goalposts–as human-rights movements naturally do.

But after Indiana, if you happen to be a traditionalist on the topic of marriage, if the passages of the Bible or other sacred books speaking of marriage between a man and a woman still compel you, well, you might conclude that your very freedom to believe is at stake.

Whose Rights?

The hot heart of this controversy is a question as old as the Mayflower: Whose rights are most at risk? Is it the believer whose religious convictions are out of step with political power? Or is it the person whose freedoms run afoul of the believer’s faith? From the Pilgrims to the Mormons, from lunch-counter protesters to abortion-clinic blockaders, Americans of many stripes have taken great risks and sacrificed much for the idea that God’s laws are superior to the laws of mere humans.

The U.S. is a place where dissent is protected, up to a point; Americans have “the right to be wrong,” as the religious-liberty lawyer Kevin Seamus Hasson once put it. An Associated Press-GfK poll released in February found that a majority of respondents–57%–in states that have legalized gay marriage would give wedding-related business owners permission to refuse service to same-sex customers if they have religious objections. The challenge is to find the point where the right of dissent overburdens other rights of other Americans. “Nobody in her right mind says that religious liberty is unlimited,” says Hasson, the founder of the Becket Fund for Religious Liberty, a nonpartisan, interfaith law firm. “Freedom of speech is limited by laws of defamation. Freedom of the press is limited in the same way. So is freedom of religion. The difficult question is not whether there’s a line, it is how you draw it.”

Freedom of religion protects the Jehovah’s Witness who sits through the Pledge of Allegiance and the Muslim prisoner who refuses to shave his beard. But it doesn’t protect the Muslim or Mormon man who wants to marry multiple wives or the biblical literalist who believes that God ordained slavery and racial segregation. On which side of the line is the conservative Christian or Orthodox Jew who believes that homosexual behavior is a sin and sin is to be shunned?

The answers to these questions have long been in dispute, but their power to bring us together and pull us apart is well known. And yet in the last weeks of March, Pence was assuring political allies and anxious business executives that the furor around Indiana’s RFRA bill was mere special-interest spin that would fade once the facts emerged.

The law was not, he insisted, a license to discriminate against homosexuals. But the ink was barely dry before his prediction proved hollow. Several Democratic governors announced that they would not permit state employees to spend tax dollars on travel to Indiana. The national business-referral site Angie’s List put an announced expansion in Indiana on hold. The NCAA, headquartered in Indianapolis, denounced the law, joining other sports governing bodies lured to the capital as part of a long-term economic-development strategy to make the city a mecca of amateur sports. University of Southern California athletic director Pat Haden announced that he would boycott an upcoming meeting in Indianapolis “as the proud father of a gay son.”

As the damage began to pile up, panicky lawmakers, civic leaders and business bigwigs gave the governor a bracing assessment. Pence had a feeling the drama would die down. “In fact,” says Mark Fisher, a vice president at the Indianapolis Chamber of Commerce, “it was just ramping up.”

A veteran of conservative talk radio–a decaf Rush Limbaugh, he liked to say–Pence, 55, is not known for such flagrant misreadings of the public mood. Through six terms in the House of Representatives, Pence patrolled the right flank of the GOP, often going beyond the Republican George W. Bush Administration on issues ranging from the bank bailout to federal education policy to new prescription-drug benefits attached to Medicare. His knack for knowing when to pick a fight inside the party helped propel Pence to a coveted perch atop the House Republican conference.

His sparkling conservative credentials, battle-hardened résumé and gig as a Midwestern governor made Pence a credible dark horse in the 2016 presidential race. But while flashier, younger men like Senators Ted Cruz and Marco Rubio shouldered through the crowd, Pence tended to the legislative session in Indianapolis. For a man who barely makes a blip on the presidential radar, there are worse ways to raise a national profile than to land in the middle of a national controversy. “It puts Pence right back in the center of the storm,” one GOP strategist notes. Social conservatives dominate the first-in-the-nation Iowa GOP caucus next year. Were Pence to stand firm behind RFRA, he could win their loyalty, says Mike Farris, a conservative lawyer who helped draft the federal RFRA in 1993. “But if he weasels out of this in order to please the clamor from the mainstream media, he will lose any chance whatsoever.”

Perhaps without meaning to, Pence has opened the GOP debate over the party’s future. Should the GOP shelve the social issues that have been a part of the platform since the divisive 1960s? Or should the party double down on social-conservative values? None of the GOP hopefuls was eager to split with the traditionalists, though some were more enthusiastic than others about wading into the fray. “Indiana is giving voice to millions of courageous conservatives across this country who are deeply concerned about the ongoing attacks upon our personal liberties,” Cruz declared. “I’m proud to stand with Mike.”

Step off the presidential treadmill, however, and you can find Republicans willing to offend the traditionalist base. More than 300 elected officials, operatives and policymakers inside the GOP have signed an amicus brief supporting same-sex-marriage rights in the Supreme Court. But White House wannabes are caught between the tide of public opinion and the risk of being outflanked on the right. If a Mike Pence, as governor, must weigh the wishes of business leaders and the threat of lost convention bookings, a Mike Huckabee, to name one social-conservative darling, holds no office and is free to pander purely.

Some Republicans hope–mostly in private conversations–that a Supreme Court ruling in favor of same-sex marriage might bury the issue and let the party move on, much as the issue of interracial marriage evaporated after the high court protected such unions in 1967. But the battle over RFRA suggests that the issue may not be settled so definitively.

A Changed Law

Pence may have been lulled into his miscalculation by the fact that RFRA laws have been around for more than two decades without stirring much controversy until recent years. The first statute, a federal law, flew through Congress in response to a Supreme Court ruling against the use of peyote in Native American religious rituals. It set a high bar for government interference with religious beliefs. If, for instance, a jurisdiction wanted to require that vehicles be visible at night, the law could protect Amish farmers from being forced to use electricity if reflective tape on their buggies would suffice. At the bill signing in 1993, then Vice President Al Gore quoted the colonial pamphleteer Thomas Paine, whose writing helped inspire the American Revolution: “It is the will of the Almighty that there should be diversity of religious opinions among us.”

In subsequent years, 19 states passed their own versions of RFRA. When Pence signed the Indiana bill on March 26, Indiana became the 20th state in this rather uncontroversial lineage–but the ground had shifted dramatically. The federal RFRA was at the heart of a polarizing Supreme Court decision last year, in which Hobby Lobby and certain other privately owned corporations were exempted from a part of the Affordable Care Act because of their owners’ religious convictions. Meanwhile, state laws restricting marriage to male-female couples were struck down by courts from coast to coast in the wake of a 2013 high court ruling on same-sex marriage. Social conservatives turned to RFRA as a last redoubt for resisting the tide of change. “The motivation for pushing the bills is to try to do something to help people of faith who are being targeted by the government simply because they don’t go along with this idea that same-sex marriage is an appropriate policy,” says Frank Schubert, a consultant for the traditionalist National Organization for Marriage.

To critics of the laws, the approach is a thin cover for bigotry. “They say that they need to protect religious freedom from the state. But no one has been able to cite a local case in Arkansas where the state has infringed on anyone’s religious beliefs,” says Kendra Johnson, who works for the local chapter of the Human Rights Campaign, an organization that promotes LGBT rights. “The real motivation is to create a license to discriminate.”

Legal experts say it’s unclear how much license the laws provide. So far, the tiny number of business owners who have refused to serve homosexual customers in other states have found no legal protection from existing RFRA laws. But in much of Indiana and Arkansas–indeed, in all or parts of a majority of states–there are no laws or ordinances prohibiting discrimination based on sexual orientation or gender identity. And though most Americans–some polls have put the number at near 90%–believe that it is illegal to fire someone because they are gay or deny them housing because they are transgender, federal law offers no blanket protections. Some courts have ruled that federal law against sex discrimination can protect same-sex couples or transgender people. But critics of RFRAs are worried that individuals and businesses could use them as ammunition to resist antidiscrimination laws.

The fact that sponsors of the new RFRA laws were unwilling to accept amendments that would protect LGBT rights deepened fears that they might incite bigotry–and not just on wedding days. Would employers be able to fire homosexual employees on religious grounds? Would landlords be allowed to bar gay renters? These aren’t far-fetched concerns, says Indiana University law professor Jennifer Drobac, who worries that an employer might be able to fire a woman for taking birth control. (In Detroit recently, a pediatrician declined to accept a lesbian couple and their baby as patients, explaining that she reached her decision after “much prayer.”)

Social-conservative activist Tony Perkins, president of the Family Research Council, says that his people are the ones whose rights are most endangered. Conservatives are being forced to condone a social revolution that compromises their faith, and so states are passing RFRA laws as “a response to this increased threat.” He predicts that the spread of same-sex marriage will keep “religious freedom” at the top of the social-conservative agenda, because “it simply provides a protection for religious citizens that they cannot be forced to engage in something that violates their faith.”

Finding Common Ground

Is there any hope of compromise? Leaders of the Church of Jesus Christ of Latter-day Saints believe they can find one. Few religious groups have more experience in handling collisions between state and faith than the Mormons, and when the 10th Circuit Court of Appeals last autumn upheld a lower-court ruling in favor of same-sex marriage in Utah, the church was prepared. In an unusual public pronouncement this January, the LDS church offered its support for legislation to protect LGBT rights in housing, employment and other policy areas. In exchange, religious institutions were given some legal clearance from portions of the new measures. The combination would signal tolerance for differing beliefs while empowering courts to resolve any cases where these freedoms come into conflict.

“If the religious community can argue for religious freedom only from the point of view of restricting or eliminating legitimate rights for another group, then the religious community is going to be identified with discrimination and bigotry, and that would be a disaster for all faith groups,” says Michael Otterson, managing director of public affairs for the LDS church. “We will all be labeled with that if we don’t find a way to communicate that religious freedom doesn’t mean you have to take away somebody else’s freedom.”

LDS leaders are hopeful that this strategy could build common ground with other religious groups. They are in talks with the U.S. Conference of Catholic Bishops and are exploring possible conversations with Jewish and Muslim groups, as well as with historically black churches.

But not everyone is buying the idea of a middle ground. Russell Moore, president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission, has called the LDS project “well-intentioned but naive.” Perkins too thinks the Utah solution is futile. “What we see happening here is this collision course between religious liberty and this newly defined sexual liberty, and as long as sexual liberty is trying to force religious liberty to embrace that, it is not going to happen,” Perkins says.

Who would bet on compromise in today’s political environment? One can wish the Mormons well in their hunt for a middle way, but it would be wise to brace for more conflict. As long as social conservatives are able to influence early presidential competitions in states like Iowa and South Carolina–while winning elections in polarized congressional districts–their voices will be heard. Their opponents, as we have seen in Indiana and Arkansas, are determined that those voices not be heeded.


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