If You Try Sometimes, You Might Find You Get What You Need

What bothered me most about the reaction to Indiana's Religious Freedom Restoration Act was not so much the misinformation, but the emotional temperature of the reaction by liberals.  The mantra of "it's a license to discriminate against LGBT people" was bad enough, but it was only part of it.

Here I must backtrack for a while for context.  The quality of political discourse on the near right (liberals, progressives, Obama Democrats, et al.) had, it seemed to me, been degenerating for some time before Mike Pence signed the RFRA into law.  Instead of trying to take the high road by being smarter, more rational, more scrupulous about fact than the far right, liberals were taking their opponents as role models. This was nothing new, of course. American politics, like politics everywhere, has always been more about emotion than about fact, personalities instead of issues.  Liberals have always countered the far right's Hillary is a lesbian who murdered her lover Vince Foster with Oh yeah? Well, Rush is a fat pedophile drug addict! And Michael Moore is fat too, just to be balanced about it!  For that matter, I'm old enough to remember when, influenced by Black nationalists' fondness for calling their opponents faggots, the New Left in the late 60s borrowed the trope.  It might be that the Internet helped make things worse.  Are you pissed off by the idiotic memes and slogans your Republican neighbors are flooding Facebook with?  Why not just make some idiotic memes of your own?  (Not that I'm in a strong position to complain about that one, of course.)

In mid-March, forty-seven Republican Senators sent a letter to Iran, notifying its government that they would overturn any deal Iran makes with the Obama administration as soon as Obama is out of office.  It was a stupid gesture, and it set off a wave of controversy.  What I saw on Facebook from the liberals I knew, linking to posts from Daily Kos, the HuffPost, and other liberal sites, was sheer howling hysteria, echoed in comments.  Words like "treason" and "mutiny" were thrown around.  "Treason" was ridiculous, since however obnoxious the Cotton letter was, it didn't fit the definition given in Article III, Section 3 of the Constitution as far as I can see: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."  Who was the Enemy to whom Cotton was allegedly giving aid and comfort, or even adhering to?  "Mutiny" was no less absurd, since opposing or being insubordinate to the President isn't mutiny. The President isn't the Commander-in-Chief of the Senate, or of Congress, or of you or me.  I suspect that what the Democrats were grasping for was something like lese-majeste, for though Obama isn't a monarch his fans like to think of him as one.

Glenn Greenwald pointed out that in the recent past, Democrats have made independent diplomatic initiatives against the will of Republican Executives, which infuriated the Republicans and inspired vitriolic abuse very much like that being spewed by liberal Democrats against Cotton and his buddies.  As usual, the players switch sides when the person in the Oval Office changes to one of a different party.  Democrats who'd attacked certain of George W. Bush's policies started defending them when Obama did the same things, and Republicans attacked Obama for doing things they'd approved and defended when Bush did them.  Republicans accused Democratic critics of Bush's wars of disloyalty, of wanting Al Qaeda to win, and so on -- until Obama continued and escalated Bush's wars, whereupon Democrats suddenly realized  how vital to America's security those wars were, and anyone who criticized them was disloyal and wished Osama bin Laden was still alive.  As Nietzsche said, of necessity the party man becomes a liar.

While I was procrastinating writing this post, I looked over older posts I'd written here and was reminded just how bad liberals have been before; it's nothing new.  I suppose I'm just getting older and tireder.  But it does seem to me that liberals are abandoning even the "reality-based", "evidence-based" pretense they've claimed in the past.  They're embracing the stupidity, dishonesty, irrationality and sheer viciousness of their opponents.

So I'm still inclined to think that liberals have gotten worse.  The comments under posts I saw on Facebook and elsewhere about the Cotton letter, and then about Indiana's RFRA, were disturbingly vitriolic, resembling the comments one sees by right-wingers on local news sites, and as free of substance or rational thought.

And then there came the Memories Pizza flap.  Remember that?  A young woman who worked in her family's pizza shop (in the town where I went to high school) told her area ABC TV affiliate:

If a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no...I do not think it's targeting gays. I don't think it's discrimination...We're not discriminating against anyone, that's just our belief, and anyone has the right to believe in anything...Why should I be beat over the head to go along with something [homosexuals] choose?"

-- Crystal O'Connor, whose family-owned pizza shop supports Indiana's Religious Freedom Restoration Act. After receiving threats, the family closed the shop. A GoFundMe page in support of their stance has raised over $50,000.

Again, there was so much here that could have been addressed rationally, starting with her claim that singling out gays was not "targeting gays" or "discrimination."  But liberals aren't much better informed on civil rights law or discrimination, so why should I expect a small-town teenager from darkest Indiana to know any better?  And leave us not forget that antigay discrimination was already legal in Indiana, as in most states, which both Ms. O'Connor and her critics forgot -- or, more likely, never knew.

So there was a lot of jocularity about how no self-respecting Homo-American would serve pizza at their gay wedding anyway.  (Unless it was penis-shaped or vulva-shaped, maybe.)  C'mon, gay men are famous for their good taste and class, their "This Face Seats Five" t-shirts!  And then Memories Pizza started getting threats, on Twitter and elsewhere.  When the threateners got caught, some at least tried to lie their way out of the situation -- just like their antigay, racist, and misogynist counterparts do.  And why not?  Gay and Lesbian and Bisexual and Trans Americans and our allies are just regular people: the people of the land, the common clay of the Midwest.  You know -- morons.  I don't jeer at the person who responded to the lesbian coach's arson threat as follows: “When you threaten to burn down #Memories Pizza that is not a mean tweet. ITS TERRORISM!”  It's exactly how a liberal would respond to the same threat coming from the other side, just as playing down the significance of the threat is how conservatives try to kick sand over their own intemperate rhetoric.  Nor can the threats be excused as a natural human response to outrageous provocation, since that excuse can be and has been used to excuse threats and violence by the Right.  Memories Pizza closed for a few days, and then reopened, fortified by a gift of more than $800,000 that had been raised on their behalf by a right-wing group.

A liberal friend of mine suggested that some of the reaction to Indiana's RFRA had been organized previously to oppose an RFRA being considered in Oklahoma. Opponents were able to block that one, so the hysteria simply was transferred to Indiana.  This is plausible, since what stopped the Oklahoma bill was an amendment that would have required businesses seeking to refuse service to gay people to post a publicly visible notice to that effect.  I noticed that even before the Indiana version passed, some of those sounding the alarm claimed that it had such a requirement.  I think this happened more because the alarmists were the people of the land, the common clay of the Midwest, etc., than because they were following a PR script. But to the extent that it was true, it undermines any attempt to excuse the ragegasms as spontaneous reactions to provocation.  People had plenty of time to inform themselves and ponder their responses; I think they were working themselves into a snit quite deliberately.

I think that a lot of what is going on here is a desire to vent against people one dislikes, or thinks one dislikes -- but from a safe distance.  It's easy to rant about the Homosexuals or the Bible Thumpers in the privacy of one's home or neighborhood tavern, where everyone present can be assumed to be like-minded, or at least to keep quiet if they aren't.  I think I first noticed this during the national controversy over Anita Bryant in the late 70s.  Most gay people who knew that their families and straight friends and coworkers were bigots weren't about to confront them directly -- but they could call Bryant a "bitch" where neither she nor their straight acquaintances would hear them.  Likewise, Bryant and her admirers could prattle about Militant Flaunting Recruiting Homosexuals without reflecting that they knew homosexuals personally, or having to look their gay relatives in the eye while they spewed out their propaganda.  Bryant claimed, and on this I see no reason to doubt her, that she received death threats.  If you lack the guts to tell your family you're queer, how satisfying, and how cowardly, to pick up the telephone and hiss threats against someone you don't have to see face-to-face. (One of the ironies was that most people on both sides who behaved like this were Christians, and saw no conflict between their behavior and their Christian beliefs.) This is why we gay radicals urged everyone who could to come out publicly, and it's why so many gay people did so: we could say to those around us, "Do you realize that you're talking about me?"

Facebook, even more than the rest of the Internet, has collapsed the distances between people at what used to be safe distances, and so undermined this desire.  But people still act as though no one could hear or see what they post.  (Not all that many bother to learn to use the privacy settings.)  I use the Internet to vent too, but first I address people I know on Facebook.  And also people I don't know: a lot of deranged garbage from all over the political spectrum turns up in my news feed, so I reply when it suits me.  Sometimes I get indignant demands that I mind my own business, but this sort of thing is my business.  It affects the quality of life everywhere, not just on Facebook, that people are so ignorant and/or misinformed (the two aren't mutually exclusive) and feel free to project their anxieties aggressively onto people they know nothing about.  By contrast, I do know quite a lot about the ideas I criticize and the people who express them.  Learning that is not often comfortable, but nowhere is it written that I must be comfortable.

Somewhere in there the playwright and actor Harvey Fierstein posted a meme which attributed to Senator Ted Cruz an endorsement of businesses being allowed to discriminate as they pleased.  It turned out to be a fake, the product of one of the proliferating satire sites.  Fierstein conceded with bad grace, complaining that it wasn't funny: "Maybe I'm just tired, but I don't find that crap at all amusing. These are people's lives and reputations." Since when does he care about Ted Cruz' reputation?  In other words, he said just what many right-wing bigots say when they fall for a similar hoax.  (His other remarks on the RFRA were equally clueless.)  One can debate the validity of at least some of those satire sites, but they do have a useful function, to remind everybody that you can't believe everything you see on the Internet.  The worst falsehoods aren't helpfully labeled as such by their creators anyway.

You Can't Always Get What You Want

By Cthulhu's tentacles!  I didn't think this shameful spectacle could get any worse, and then of course it did.  It's almost certainly not over yet.

I confess, I didn't pay much attention at first to the Religious Freedom Restoration Act as it moved through the Indiana Legislature.  I don't know why; I pay less attention to state politics than to local, national or international politics, and that's not something to be proud of.  But as more and more people began drawing my attention to the bill, and the temperature of the opponents' rhetoric rose, I grudgingly took a look.

First I looked at the text of the bill itself.  I took for granted that "Religious Freedom Restoration Act" was intentionally misleading, a smokescreen like "Defense of Marriage Act" or "Marriage Equality".  People I knew were fuming that it would be a license for discrimination against LGBT people, and I wondered what such a law would look like.  Someone mentioned that there was a Federal RFRA too, passed during the Clinton administration.

As I'd rather suspected, the Indiana bill, like the Federal one, didn't explicitly mention sexual orientation or gay or trans people.  Both versions were weirdly vague, which I thought was worrisome enough.  The gist of the Federal bill, as well as of the Indiana version (I know, I know, but hold your horses -- I'll get to that presently) was that "Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability" and that any burden must be justified as "furtherance of a compelling government interest."  The point of the Federal bill was to protect small, marginal religious sects when their practices ran afoul of majority prejudices and laws.  The best-known example of this was peyote use by the Native American Church, but the RFRA was cited in other contexts too, ranging from conflicts over the renovation of a Roman Catholic church building that had been designated a historical landmark to the infamous 2014 Hobby Lobby case.

In 1997 the US Supreme Court overturned part of the Federal RFRA, "with respect to its applicability to States (but not Federally), stating that Congress had stepped beyond their power of enforcement provided in the Fourteenth Amendment."  Numerous states then passed RFRAs of their own, of which the Indiana version is (so far) the latest.  In some cases, court rulings provided similar protections at the state level.

That the Indiana bill didn't refer explicitly to sexual orientation doesn't tell us anything about its intent, of course; that's why I find its vagueness so worrisome.  What constitutes a "substantial burden" probably is constrained somewhat by case law, what the courts have ruled on the subject in the past.  But that's just what is being debated now: is it a "substantial burden" to require businesses to serve customers whose lives are at some kind of variance with the business owners' religion?  This is likely to be fought in the courts for years to come.

When I pointed this out, asking snarkily how many of the Indiana bill's opponents had actually read it, the reactions (basically "you think you're so smart!") indicated that they hadn't, but OMFG we have to do something right away, because this law will give Bible-thumpers a license to discriminate against LGBT people!

On this point I confess I was slow on the uptake.  It took me a few days of debate before I remembered that Bible-thumpers in Indiana (or anyone else, in fact) already have "a license to discriminate against LGBT people": Indiana's civil rights law doesn't include sexual orientation as a basis on which it is forbidden to discriminate.  Not only that, Indiana localities are not permitted to add anything to the state law's provisions in their own civil rights ordinances.  My liberal city, Bloomington, tried to do so in the 1970s, but that ordinance was overturned.  In the 1990s, West Lafayette and Bloomington tried another approach: they passed ordinances which forbade discrimination based on sexual orientation, but without any provision for enforcement.  The city would attempt to mediate complaints about discrimination, but there could be no penalties.  Those ordinances are still on the books, but they don't constitute any real prohibition of discrimination based on sexual orientation.

Nor is Indiana unique in this regard.  Some people I knew began calling for boycotts of Indiana if the bill passed.  The first lives in Kentucky.  Kentucky already has a Religious Freedom Restoration Act, and does not legally forbid discrimination based on sexual orientation.  The state government of Kentucky is currently fighting against the legalization of same-sex civil marriage there.  So shouldn't he boycott himself first?  Then my liberal law-professor friend said, half-jokingly I guess, that she wasn't sure she should visit her family in Indiana, she didn't want to spend money here.  She lives in Texas, which already has a Religious Freedom Restoration Act, and no legal protection for sexual orientation.  As a law professor who specializes in civil rights law, she surely is aware of this.  (So far she has yet to say anything about the Indiana RFRA that betrays any intelligence at all.)  Before long some random person in Michigan issued the clarion call to boycott Indiana.  While Michigan doesn't have a state RFRA, it does have "RFRA-like protections provided by state court decisions," and permits discrimination based on sexual orientation; it also has a ban on same-sex marriage passed by popular vote ten years ago, but still in force so far. (The Detroit Free Press editorial I just linked to was one of the more sensible things I've read on this issue.)  This map, already out of date but still helpful, shows the thirty-one states that have RFRAs or RFRA-like court decisions.

Same-sex civil marriage is legal in Indiana, by contrast, and it seems that the RFRA was introduced as a sullen riposte to the activist courts that made it so.  (So there, too!)  I wouldn't be at all surprised if Governor Mike Pence, who clearly isn't the sharpest pencil in the box, was unaware that antigay (as well as anti-straight) discrimination was already legal in the state he governs. 

Now, it is true that the Indiana law has some important differences from the federal RFRA, and from other state versions, as discussed here.  They're clearly meant to make it easier for bigots to cite religious freedom to defend discrimination.  Again, however, none of these differences point to sexual orientation.  They are meant to defend all kinds of discrimination, even those that are prohibited by existing civil rights law.  And let me repeat: In Indiana and most other states, there's no need to cite religion as a justification for discriminating against LGBT people, since it is already legal to discriminate against us here.  What I find annoying about most of the Indiana RFRA's critics is that, first, they ignore this elementary fact.  Numerous people quoted Stephen King's line "Indiana's Religious Freedom Restoration Act is gay discrimination, pure and simple. You can frost a dog turd, but it's still a dog turd."  Leaving aside King's evident confusion about terminology (it's antigay discrimination, not "gay discrimination"), the Indiana RFRA is not specifically about gay people.

My second concern is that in the hysteria over this law as a license to discriminate against gay people, its critics are overlooking other forms of discrimination that are at least as relevant in a Republican, heavily conservative-evangelical state.  If a good Christian shopkeeper wants to refuse to serve a woman in a hijab or other Muslim head covering because America's a Christian country so go back where you came from, for example, this bill would provide a cover for that refusal -- at least until the courts overturn it.  Most (all that I've seen, in fact) of the fuss over the Indiana RFRA focuses on antigay discrimination, while ignoring its other implications.  This may be partly because so many LGBT Americans, being Americans, are quite comfortable with anti-Muslim discrimination, racism, sexism, and other areas where faith and the law may clash.  The campaigns for "marriage equality" and against the US military ban on homosexuals involved a lot of reactionary flag-waving and Bible-thumping to assure their fellow citizens that LGBTs can be good Republicans and Moral Majoritarians too.

Which brings me to another flaw in the criticism.  Given the vagueness of Religious Freedom Restoration laws at all levels, their writers' intent is not all that important, but it can still be noticed and discussed.  Given the people who inspired and worked on the Indiana bill and who were present when Pence signed it into law, I don't doubt that enabling antigay discrimination was their intention.  (Though they'd probably be quite happy if it could be used against Muslims, Jews, Wiccans, atheists, and others.)  But the intentions of a law's framers don't determine much.

Take the the Equal Access Act of 1984 (via), passed during the Reagan administration to force public schools to allow students to use their facilities for prayer and Bible-study groups.  In those heady days, when the Christian Right saw Reagan as their Vindicator who would make the whole world bend the knee to Christ as they conceived of him, it's not surprising that the bill's sponsors and supporters dismissed concerns that it could be used by secularists and homosexuals and others they disliked.  But the EEA turned out to be the "single most important tool available"* to the Gay-Straight Alliances that spread across the US in the 1990s.

Returning to the RFRAs: the Federal version was intended to protect minority religious groups, notably Native Americans.  It failed to do so.  First the Supreme Court ruled it unconstitutional as it applied to actions by the states, while sustaining it at the Federal level.  Then it turned out that Native Americans who used peyote in religious rituals were still running afoul of law enforcement, so the law had to be amended in very specific language: "the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremony purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any state. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation."

The authors of the Indiana RFRA learned from the failures of other state RFRAs. Its provision that government entities need not be involved to make a case for infringement of religious freedom, for example, was evidently inspired by a court's rejection of such a case involving a private business in New Mexico.  The Indiana bill attempts to plug that hole.  Whether the courts will accept this plug will have to be seen.  Again, the critics of the Indiana law ignored such issues until their noses were rubbed in them, and then they still preferred to focus on its nonexistent "license to discriminate against gays" aspect.

Some unexpected and unwelcome invocations of religious freedom have been turning up even before the Indiana RFRA was passed.  Some were meant seriously, others humorously, but they were no less educational for all that.  One example that got a lot of press was the "nearly nine-foot-tall bronzed statue of a Baphomet, a goat-headed idol seated on a throne before two children, which [the Satanic Temple] plans to erect in the Oklahoma Capitol."  I hope that creative interventions like this will proliferate, letting the Christian Right and the American public know just what a Pandora's box the RFRAs will open.  While the intention of the Indiana Religious Freedom Restoration act was certainly bad, the intentions of many of its critics are also suspect as far as I can tell.

Next: the backlash.
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*Melinda Miceli, Standing Out, Standing Together: The Social and Political Aspects of Gay-Straight Alliances (Routledge, 2005), page 39.