Recently, I witnessed what might be described as an explosion of outrage on social media and in news outlets regarding the recent passage of a state version of the federal government’s almost unanimously-supported Clinton-era bill by the name of the Religious Freedom Restoration Act. This outrage existed concurrently with the vocal support of many religiously-motivated conservatives who see it as a victory over recent decisions that tried to require businesses to pay for insurance coverage that included drugs they considered to be abortifacients and did in fact require a business owner to make a wedding cake for a same-sex couple despite his religious objections to such unions.
As I recently pointed out on social media, the religiously-motivated conservatives who see this as a state-level protection that will add to the protections of the federal RFRA are probably wrong. In the case of the Colorado cakeshop, the religious freedom of the business owner did not override the state’s compelling interest in enforcing its anti-discrimination statutes, and that outcome is unlikely to have changed with the application of the Sherbert Test. I tend to agree with Conkle that the Indiana RFRA is unlikely to change the legal landscape in Indiana in such a way that an increase in legalized discrimination by businesses against same-sex couples is the primary outcome (or even a common secondary outcome). Even the recently much-maligned Mike Pence, a governor I didn’t vote for and don’t support generally, seemed surprised at the backlash from signing into law something that already exists at the federal level and in many other states.
I don’t think he should be surprised at all. For those of us who grew up in a time when “gay” was used as an insulting label applied generally to anything the speaker thought was stupid, those of us who had friends who experienced bullying because of their sexual orientation, those of us who were accused of being attracted to people of the same sex as if it were a terrible character flaw, and especially for those who actually experienced the painful fallout from telling their family members and friends that they were attracted to members of the same sex, it pushes a hot poker into a wound to read an article claiming that Republican legislators have passed a bill providing businesses with a license to discriminate. And because it fits with the experience my generation has had with the bullying of those people who are attracted to members of the same sex, it’s a narrative that’s very easy for us to believe.
This is not to say that I think we should give in to our temptation to merely affirm what seems intuitively plausible. I think we need to look first at the facts (including the text of the bill), understand how it intersects with the rest of Indiana’s laws (including anti-discrimination laws), remember how Indiana did not pass the same-sex marriage ban floated previously, and use an analytical approach that can help us sort out how to truly positively impact the rates of unfair treatment.
Maybe that means adding to Mitch Daniels’ and Joe Kernan’s anti-discrimination work by extending it to apply to all employers rather than just public employers. Or maybe most employers already have their own anti-discrimination policies regarding sexual orientation. I simply don’t have the data to answer that question either way. Maybe it means adopting statewide legislation similar to Colorado’s anti-discrimination statutes.
That may be difficult to get full support for today (I don’t know that either), but in ten years I suspect that it will be easy because my generation simply doesn’t believe the moral intuitions of previous generations. We don’t understand why a baker would refuse to make a cake for a same-sex couple on Christian religious grounds, but not refuse to bake cakes for opposite-sex couples who have previous marriages and are technically committing the grave sin of adultery according to Christian teaching. On the whole, the intuitions of members of my generation with regard to religious freedom are very different from those of previous generations. Many of us tend to assume that this difference in intuitions and values is actually due to a real animosity toward those who are attracted to members of the same sex and same-sex couples. I happen to think that many of us are wrong in that assumption, but in light of our experience of unfair treatment of our friends and in some cases our very selves, it’s at least an understandable assumption.