Pence Looks For Cover

Martin O’Malley’s appearance on This Week, which I wrote about in the last post, was actually overshadowed by an inept appearance by Indiana Gov. Mike Pence. CNN’s Eric Bradner had the best textual description of how Pence performed:

Indiana Gov. Mike Pence says concerns that his state’s new “religious freedom” law will allow businesses to turn away LGBT customers is the result of a “tremendous amount of misinformation and misunderstanding.”

But he refused Sunday to answer at least six yes-or-no questions about whether the measure legalizes discrimination against gays and lesbians.

And he said he won’t support legislation that would clean up the public relations mess by adding protections based on sexual orientation to Indiana’s anti-discrimination laws.

Pence is trying to use the “nothing to see here” and “everybody’s doing it” defenses, which is why he’s loath to get into the law’s details and admit that the statute he signed is not just like the federal Religious Freedom Restoration Act and not just like most other states’ RFRAs.

At the Atlantic, Garret Epps has a good simple description of how the Indiana statute differs from most precedents:

[T]he 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.

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.

So Indiana is trying to create a genuinely plenary zone of sanctioned discrimination, including every kind of entity and protecting discriminators from legal action from any direction. The first point carries it beyond SCOTUS interpretation of the federal RFRA in the Hobby Lobby case as covering “closely held” corporations, but not all for-profits. And the second means Indiana isn’t just protecting religious folk against the all-powerful government, but against the very targets of their discrimination.

If Pence was more adept as a communicator, he might have tried the “grand bargain” defense: “religious liberty” protections are in effect a surrender by cultural conservatives who will stop trying to ban things they don’t like in exchange for an assurance they can quietly live their lives according to their faith. But Indiana’s example is actually blowing up that argument as well. The more they talk about it, advocates of broad-based “religious liberty” laws sound like those conservatives back in the day who offered to accept the Civil Rights Act of 1964 if the public accommodations section was removed. That was, in fact, the position of the 1964 Republican nominee for president, Barry Goldwater, and that’s largely why he became the first Republican since Reconstruction to carry the Deep South, even as he lost catastrophically just about everywhere else.

Everybody then understood, as everybody now should understand, that letting private individuals opt out of anti-discrimination laws was a formula for neutering them. As it was, in the 1960s it took many years for the public accommodations laws to be enforced against the forest of “private clubs” that popped up across the South in an effort to maintain segregated eating, drinking and lodging. It could have been much worse, and might be today unless similar arguments for the sanctity of private discrimination are examined and rejected.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.