Alex Constantine - April 1, 2015
Let’s face it: You don’t get to be governor of a deeply red state like Indiana, which went Republican in every presidential election from 1968 to 2004, without a dose of intolerance in your bones. One of the most conservative states in the Midwest, in many ways Indiana is “more southern than the South.” The notion that its legislature would adopt a more severely discriminatory version of so-called “religious freedom” laws than currently on the books anywhere should come as no surprise to anyone.
In recent days, Gov. Mike Pence claimed his state was hit with an “avalanche of intolerance.” In a press conference Tuesday morning, he called media coverage “reckless” and driven by misconceptions over what Indiana’s controversial Religious Freedom Restoration Act intends.
It’s a curious response from a man who just bastardized the Bill of Rights and invoked Dr. King and Bloody Sunday to revive segregation-era laws. At the height of the civil rights movement, supporters of America’s own system of apartheid used privacy and property rights in an attempt to defend the indefensible. Today, led by Ralph Reed’s Faith and Freedom Coalition, Indiana and other states are citing “religious freedom” to roll back the clock on social progress.
Gov. Pence claimed repeatedly that the language in the Indiana law mirrors the federal act signed in 1993 by then-President Bill Clinton. According to Pence, it is identical to Illinois state legislation supported by then-state senator Barack Obama. Without taking a breath, he even pointed to the ACLU.
Saying, “I abhor discrimination,” Gov. Pence claimed, with a straight face, that his version of the RFRA does not allow businesses to “deny services to anyone.” In fact, it does. In fact, the Indiana law differs from the federal legislation and related state statutes Pence cited in two critical ways.
Pence, an attorney by training and trade, surely knows this.
Unlike the Indiana law, the federal RFRA does not contain any language that allows for-profit businesses to assert a right to “the free exercise of religion.” None of the other 19 states with RFRAs, except South Carolina, make such a mention.
Pence also says his RFRA is designed to specifically and narrowly prevent government infringement on religious liberties during court proceedings. In fact, the legislation unambiguously includes non-governmental parties—meaning businesses and individuals can be both plaintiffs and defendants under the law. Indiana’s RFRA says a business can use the “free exercise” right as a defense against a civil lawsuit brought by an individual.
The governor was lying when he told ABC’s This Week “this isn’t about disputes between individuals. It’s about government overreach.”
The law he signed specifically says:
A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.
Again, neither the federal RFRA nor 18 of the state statutes say anything of the kind. Texas, which enacted its version in 1999, stands alone in including similar language in its RFRA.
Pence, who last year wouldn’t rule out a run for president, clearly has more heady ambitions and is pandering to a base of right-wing evangelicals. He wasn’t prepared, he said, for the backlash that included economic boycotts. He certainly wasn’t prepared for thousands of protestors who planned to descend on Indianapolis for the Final Four.
Calling the legislation “vital to the framework of liberty,” Pence defended the Hoosier State as home to some of the most hospitable people in the world. He says there is a perception problem that he hopes the Indiana legislature will work to fix this week. He wanted everyone to know that “Indiana is open for business.”
To the contrary, the Indiana legislation was an engraved dinner invitation addressed to Jim Crow. The religious freedom laws recently enacted are about anything but liberty. They are about codifying bigotry into law.