Gov. Mike Pence’s Dilemma. . . and ours

I watched Gov. Mike Pence’s press conference this morning with great interest. He is trying to face down an enormous backlash against Indiana’s recent Religious Freedom Restoration Act (RFRA), which has been mischaracterized nationally as a license to discriminate against gay people. Nevertheless, he called a press conference and announced his intention to consider a legislative “fix” or “clarification” of the RFRA law. He did not explain what that legislative “fix” might consist of, but he said that something is coming.

I like Gov. Pence, and I think that he has been trying to fight the good fight. But he has gotten himself into a dilemma that has no good political outcome for him. His press conference has had the result of refocusing the national debate. Going forward, this conversation will be less about the RFRA and more about whether sexual orientation should be a protected class in Indiana state law.

A reporter asked Gov. Pence about this issue during the press conference, and Gov. Pence did not answer the question. When asked whether he would support making LGBT into a protected class, Gov. Pence said that was not on his “agenda.” Two things are problematic with that response. First, Gov. Pence did not rule out a “fix” that would make sexual orientation into a protected class. Second, Gov. Pence is not in control of his “agenda” right now. His agenda is being set by events unfolding around him. Whether he likes it or not, he will have to face this question and answer it one way or the other.

And that brings us to his current dilemma. There is no legislative “fix” that will please all sides of this debate. On the one hand, any “fix” that falls short of recognizing LGBT as a protected class in Indiana law will not be acceptable to critics. Gay rights activists in the state won’t be satisfied, and neither will the business interests (NCAA, Angie’s List, Apple, etc.) who are threatening to pull out of the state. None of the critics are going to be mollified if the “fix” fails to recognize sexual orientation as a protected class.

On the other hand, any “fix” that makes sexual orientation a protected class in Indiana law would arguably leave religious liberty in worse shape than before the RFRA was passed. It was precisely this kind of law that led the Washington State attorney general to sue a 70-year old grandmother for declining to participate in a gay wedding. She had been serving and employing gay people in her flower shop for years. But when she declined to participate in a gay wedding, the AG and the gay couple sued her. The AG based his case against her on Washington State’s law that makes LGBT into a protected class. The 70-year old florist lost the case and is now in jeopardy of losing her flower shop, her home, and her retirement. It is that kind of law that critics want Gov. Pence to pass in Indiana, and it is that kind of law that potentially causes serious conflict with religious liberty.

So Gov. Pence faces a real dilemma right now, and so does the country. I am not confident that Americans realize what is unfolding before our very eyes in our nation. It is clear to everyone that the Supreme Court will likely declare gay marriage a constitutional right this June. That means that gay marriage will be legal in every state of the union this summer. What I don’t think Americans realize is that many proponents of gay marriage do not want to allow any legal accommodation for religious people who continue to believe in traditional marriage. The activists want to force the 70-year old grandmother to participate in the gay wedding or face crippling fines that put her out of business. No compromise. No retreat. They are willing to dismiss such principled religious dissenters as bigots and “Jim Crow” throwbacks. Gay marriage will be the law of the land, but does the average American know at what cost?

I’m less concerned about Gov. Pence’s dilemma right now than I am about the larger question that our country is facing. Are we really going to become the kind of country that offers no accommodation to principled religious dissent? Are we really going to forget about our first freedom in the Bill of Rights—religious liberty? I hope not. But the events of the last five days seem to indicate otherwise.

43 Responses to Gov. Mike Pence’s Dilemma. . . and ours

  1. ¯\_(?)_/¯ (@Frank_Turk) March 31, 2015 at 3:17 pm #

    Somebody needs to say out loud that, however born that way the LGBT crowd may be, what they actually do is repugnant and unloving toward each other. CDC stats demonstrate that easily. And for me not to want to celebrate those things which they do to each other is actually my right — unless it is about to become illegal to refuse to participate in that behavior.

    We need to buck up, and if the persecution starts, we should love Christ at least that much.

    • Nathan Cesal March 31, 2015 at 4:25 pm #

      @Frank_Turk

      The CDC stats easily demonstrate what happens when you don’t have marriage equality.

    • buddyglass March 31, 2015 at 4:49 pm #

      Is that the standard you’d apply, without nuance?

      “I won’t serve Jews because they’re part of a conspiracy to take over the country.”

      “I won’t serve Christians because they profanely call Allah by a different name and neglect to recognize Mohammed, his Prophet.”

      “Black people are morally corrupt. FBI crime stats demonstrate that easily. Consequently, I don’t want them in my store.”

      • Michael Hutton March 31, 2015 at 9:09 pm #

        buddy,
        that can go back the other way.

        Is that the standard you’d apply, without nuance?

        “You must fight in this war and your personal ideologies are irrelevant.”
        “You must terminate this pregnancy and your personal wishes are not material.”
        “You must offer incense at this altar and your personal faith brings no concession.”

        There is a conflict here between the state legislating morality and the individual asserting his right to dissent.

        Burk has accurately revealed the situation that at present the forefront of the homosexual rights movement allows no dissent. It seems only likely to gain momentum and tighten restrictions rather than loosen them.

        I can see why it’s stupid for some redneck to refuse to serve a person with dark skin. he’s losing business. I can see how it’s wicked for a whole town to refuse education or hospital care to an individual because of their ethnicity.

        But in this clash of rights I honestly can’t see why it’s worse for a minority of the community to say, “I don’t want to be part of that” when identical service is available down the street than for the government to bring all it’s legal, judicial and physical power to bear to force people to act against their conscience.

        • buddyglass April 1, 2015 at 12:16 am #

          Those are examples of the govt. forcing an individual to do something outside the context of regulating economic activity. There is no basis whatsoever for the govt. to require someone to burn incense at a particular altar. The bill of rights pretty much covers “requiring someone to practice a particular religion”.

          In the case of Christian bakers, etc. the state is creating a condition for doing business. IF you want to sell wedding cakes THEN you cannot refuse to do business (in the context of selling wedding cakes) with the class of individuals who are same-sex attracted.

          It is not “legislating morality”. State and local governments aren’t saying, “You must think homosexual activity is 100% A-OK.” They’re saying, “You’re free to think whatever you want about homosexuality, but you can’t shut gay people out of the marketplace.”

          I’m actually of the opinion that this sort of discrimination should be allowed because the impact is so minor, because the discrimination is entirely contextual (i.e. just weddings as opposed to targeting all homosexuals), and because its motivation is explicitly religious (which is different from racial discrimination). That said, disallowing it doesn’t seem (to me) to be the extreme example of govt. overreach it’s being characterized as.

          • Michael Hutton April 1, 2015 at 12:30 am #

            Is a wedding not a religious ceremony? Is the Baronelle lady not being forced to take part in a religious ceremony? What happened to your bill of rights when she needed it?

            You say you are free to think what you want about homosexuality, but you are not free to think what you want about marriage though, are you? Yet marriage has been and remains (despite some secularization and a whole lot of dumb thinking) a religious activity.

            Please step back, have a look at the cases before the courts. Ask yourself, “Who is being shut out here?”

            Come on, in the cases we have seen homosexuals have not been shut out of the marketplace, but that little old lady definitely is.

            Suppose a little old Jewish lady set up a shop to make Bar Mitzvah cakes. Suppose then a Lebanese (or Tongan, or anything else) man wanted a coming of age ceremony for his son. And went and asked for Bar Mitzvah cakes. The little old lady says, sorry it’s not a Bar Mitzvah. Then the government says it is so and you will make those cakes or go out of business.

            Go and tell Baronelle that it’s not government overreach. She’s just imagining it.

    • Paul Reed April 1, 2015 at 8:45 am #

      @Frank_Turk
      “what they actually do is repugnant”

      Right, but I think people are looking for you to back that up somehow, and moreover demonstrate why the activity should be curbed. You’ve employed a “gay sex is ‘icky'” argument, and it’s the kind of argument my 4 year old niece deploys against any food that isn’t candy.

  2. Christiane Smith March 31, 2015 at 3:23 pm #

    I think that our country does offer principled religious dissent now, but not in areas where BOTH people’s faith AND their public business enterprise intersects. It is at those junctures that people of faith cannot compromise, nor apparently is the public willing to tolerate public discrimination as a result of a business owner’s religious principles.

    Is it possible that people can at least TALK about this openly as concerned citizens rather than taking actions that further confuse the issue? Essentially, the country has no wish to harm grandmothers like Mrs Stutzman, who is sincere in her faith and offered to help the gay customers find other appropriate services . . . she is an innocent in this nightmare, and people understand that the actions taken against her were punitive and were over-the-top political maneuvering. On the other hand, the country does not wish to sanction any public discrimination against any minority group of Americans. The memories of many of us retain the images of the treatment of black people during the fifties and sixties . . . and yes, they WERE a minority and they WERE discriminated against publicly, rather horribly to be honest.

    Am I ‘lumping’ gay people together with other minorities here? Yes. LBGT folk are in the minority in our country, but they are as American as you or I, and we should not ever want them to be treated without dignity as human persons in any public venue.

    This is a ‘moral dilemma’. The only real permanent answers to it will come from the resolve of our country to find compassion for the specific people of faith affected and offer them reasonable alternatives for those public business situations where their faith may bring them into collision with the rights of all manner of American customers. That is going to take some really sensitive work but it is not beyond the scope of our country to find better answers than we can now envision.

    • Andy Moffat March 31, 2015 at 4:57 pm #

      Some good thoughts there Christianne – especially the first paragraph. That really is the issue that needs to be figured out. Which rights outweigh the other? And in what context?

      Would we allow an African American printer to refuse to print a flyer for a KKK meeting? Is that the same kind of conundrum?

  3. David Howard Gleit March 31, 2015 at 3:46 pm #

    Here’s what I see as the essential weakness of your argument: in no way is that 70 year old grandmother being forced to change her beliefs. She has the full freedom to believe whatever she wants, and I will defend to my death her right to express and hold on to those beliefs. She just does not have the right to “act” in a very specific and limited way which society (now) views as unacceptable: i.e., to specifically and discriminatorily refuse service to someone based on their sexual orientation. It’s not about beliefs, it’s about actions. Very specific actions.

    • Johnny Mason March 31, 2015 at 3:57 pm #

      “in no way is that 70 year old grandmother being forced to change her beliefs”

      And yet, if she does not change them, she will lose her business. Nothing to see here.

      ” I will defend to my death her right to express.. those beliefs”

      Apparently not, since in the next breath you say she cannot act on those beliefs. What is expression if not action?

      Also, she did not refuse service to someone based on their sexual orientation. She had gay customers. Regular gay customers. She never refused to serve any of them. She just did now want to participate in a gay wedding. She was refusing the event (the wedding) and not the person. And you would have her lose her business if she does not comply.

      • James Bradshaw March 31, 2015 at 4:27 pm #

        Johnny: I know that there are a great many self-professed “Bible believing Christians” who believe divorce to be gravely immoral in most circumstances (along with remarriage). Many oppose interfaith marriages.

        Do you believe that these folks’ religious freedoms have been unduly infringed upon by the legal existence of civil divorce or heterosexual remarriage? In other words, have the rights of civil clerks, attorneys and/or small business owners been curtailed by the existence of these civil partnerships?

        If not, how is gay marriage any different?

        Look, I understand what you’re saying. Personally, I would not have sued this woman, and I find using punitive measures to make someone do something they don’t want to do to be ugly. Let’s face it, though: we both know that this “principled opposition” only exists when it involves gays. In any other scenario, no one seems the slightest bit inconvenienced.

        As Christiane noted, perhaps if our nation hadn’t had a history of locking an entire segment of society out of the free markets because of vile racism (often under the banner of religious dogma), this discussion would look very different and we’d all be a bit more capable of tolerance (on all sides).

        One other thing: having to bake a cake (for compensation at market price, no less) is far less an example of “persecution” than losing one’s military career because someone doesn’t want to work alongside a “queer”. Do I need to remind everyone here of the opposition to the lifting of DADT? Some perspective is in order, here.

        • Johnny Mason March 31, 2015 at 8:02 pm #

          @James – No, my religious rights have not been infringed by the existence of divorce and remarriage. But we are not talking about the existence of a thing. We are talking about the participation/approval of a thing, because if you were to force someone to celebrate a divorce or remarriage against their conscience, then you have infringed their right.

        • Tim Elliott April 1, 2015 at 7:48 am #

          “Let’s face it, though: we both know that this “principled opposition” only exists when it involves gays. In any other scenario, no one seems the slightest bit inconvenienced.”

          James,
          Really? Have you witnessed every single “principled opposition”? Be careful. I believe you have weakened your argument by your implied omniscience.

      • David Howard Gleit March 31, 2015 at 4:54 pm #

        No contradiction “in the next breath” at all. There is indeed a distinction between “freedom of religion” and “acting on those beliefs.” Fundamentalist Mormons have a right to believe in their “plural marriage” doctrine. I will defend their right to hold those beliefs and to express them openly. But “in the next breath” I also support forbidding them from actually acting on those beliefs, for reasons I’m sure you understand. Is that a violation of their “freedom of religion?” Well, in their Fundamentalist Mormon minds, it surely is. But not in the mind of most Americans.

        That’s what you’re up against – the disconnect between how you apparently view discrimination and the way most Americans now view it. Now, if you do agree that a business owner should not be allowed to “refuse service to someone based on their sexual orientation” then maybe we’re closer then it appears. I don’t know the particulars of what being forced to “participate in a gay wedding” even means (doesn’t sound good, admittedly), but maybe we can agree at least that there should indeed be no discrimination based on sexual orientation?

    • Gus Nelson March 31, 2015 at 10:10 pm #

      That doesn’t make sense. If she didn’t have the beliefs, she wouldn’t be acting the way she did. They’re inextricably intertwined. It does her no good for you to proclaim you’ll defend her right to express and hold her beliefs . . . except whenever you won’t.

    • merletemple April 2, 2015 at 2:39 pm #

      You cannot separate beliefs from actions, because the state would require her to take action that would violate her beliefs. Obama and Hillary changed the term “freedom of religion” to “freedom of worship,” early in his administration. It was a clear signal that Christians can worship behind the walls of their churches, but when they come outside, they belong to, and are at the mercy of, the state. She never has refused to serve customers based on orientation, only on same sex marriage requests that violate her faith by way of required action. She had known the customer for a long time, served him, but when he made this request, she gently took his hand, professed her love for him, but respectfully told him that she couldn’t service an act that violated her faith. This man she thought the world of then threw her to the wolves of the messianic state. The absence of love and tolerance is not and was not from the 70-year-old grandmother.

  4. Andy Moffat March 31, 2015 at 3:52 pm #

    The grandmother’s refusal of service was not based on the client’s sexual orientation. It is very clear that she served gay customers on a regular basis. The issue is whether or not she is allowed to refuse service when she is being asked to participate in a ceremony she disagrees with.

    • buddyglass March 31, 2015 at 4:53 pm #

      Thought exercise: would refusing to bake cakes for Christian weddings, christening ceremonies, and Christmas/Easter celebrations be discriminatory toward Christians?

      • David Howard Gleit March 31, 2015 at 5:12 pm #

        Yes. Discrimination based on religious background is wrong and illegal.

        • buddyglass April 1, 2015 at 12:25 am #

          But I wouldn’t be discriminating on the basis of religion. I’m happy to serve Christians; I just don’t want to participate in Christian ceremonies, which I find repugnant and immoral and which conflict with my sincerely held religious beliefs. I’m happy to bake a birthday cake for a Christian; I just don’t want to bake wedding cakes, christening cakes, Christmas cakes, Easter cakes, etc.

      • Brian Sanders March 31, 2015 at 6:16 pm #

        buddyglass: “Thought exercise: would refusing to bake cakes for Christian weddings, christening ceremonies, and Christmas/Easter celebrations be discriminatory toward Christians?”

        If anyone for any reason. other than “gay” marriage, went into a bakery and asked for something they did not offer that would simply be the end of the discussion. No uproar, no national news, no complaints even to the neighbor, just go on down the street to the next establishment and get what you want.

        • buddyglass April 1, 2015 at 12:26 am #

          I’m pretty sure a baker refusing to bake cakes for Christian wedding ceremonies would make the national news. Conservative news outlets would go bonkers.

      • Scott Greider March 31, 2015 at 10:53 pm #

        Yes, and it should be legal. As should all forms of discrimination. First Amendment. Freedom of association. We’re either all in, or all out. This latest debacle is the inevitable result of trying to allow some while denying others.

        • buddyglass April 1, 2015 at 12:33 am #

          That view is at least consistent. However, it’s not the view commonly held by the folks who argue Christian bakers, etc. should be free to discriminate against gay customers. Most folks making that argument likely support anti-discrimination laws in the contexts of race, religion, gender, etc.

        • James Bradshaw April 1, 2015 at 12:03 pm #

          Scott, would you be saying that if you were not a white, Christian heterosexual male? You’re speaking from a place of privilege, particularly in America.

          De facto segregation existed long after slavery and Jim Crow laws ended. We’re still paying the price for that, and that is why there is a compelling interest in requiring businesses to serve everyone, regardless of any personal discomfort on the part of the business owner.

          The greatest harm that can be inflicted on the owner is far less than what happens when minorities are effectively shut off from access to the free market and any services it provides.

          • Michael Hutton April 2, 2015 at 12:31 am #

            How can it be a free market when someone is being compelled?

    • David Howard Gleit March 31, 2015 at 5:09 pm #

      See my answer above. So are you perhaps agreeing that “refusal of service.. based on the client’s orientation” (which you say Grandma did not do) is something society (government) has a right to intervene on and prohibit? Can we agree on that?

  5. Ike Lentz March 31, 2015 at 4:30 pm #

    What Pence’s press conference and this post finally admit, is that the problem isn’t that people don’t understand the bill, it’s just a semantic argument over what constitutes discrimination.

  6. Dal Bailey March 31, 2015 at 7:12 pm #

    I had a friend ask me what I’d do if I was a baker, florist or photog. I answered “I’d bake the cake, because “I” am not attending the wedding. If I was a florist or photog, I’d have a “Contractual” third party who would take the job.

    Result, everyone is happy.

    • John Kreiner April 1, 2015 at 9:11 am #

      Unfortunately, the way things are going, people might very well want to know why you can’t do it yourself when you do it for other people. Then when you are honest about it, they would sue you.

    • Johnny Mason April 1, 2015 at 5:41 pm #

      Dal, you are living in a fantasy land if you think that will work.

      “There was a doctor in California who didn’t want to do an in vitro fertilization for a lesbian couple. She referred the couple to her partner in the same practice. They said, “Not good enough, we’re terribly insulted” and so forth. California is not a RFRA state and the doctor lost.”

      http://www.vox.com/2015/3/31/8319415/indiana-religious-freedom-discrimination

  7. William Smith April 1, 2015 at 9:10 am #

    “I’d have a “Contractual” third party who would take the job.

    Result, everyone is happy.”

    Yes, that’s been my suggestion/feeling as well. Smart business owners should be networking to find others who would be willing to step in for them should this type of need arise.

    Would the result be that everyone would be happy though? It seems doubtful to me.

    There’s the million dollar idea for someone though: Start a clearinghouse website for just this type of situation.

    • Noah Morgan April 1, 2015 at 10:14 am #

      “Yes, that’s been my suggestion/feeling as well. Smart business owners should be networking to find others who would be willing to step in for them should this type of need arise. ”

      No. I will not serve a homosexual couple, nor will I help facilitate their sin by sending them to someone who will enable it. They require salvation, not condonation.

  8. William Smith April 1, 2015 at 9:57 am #

    I should add, as I noticed that Walmart has asked for a veto of the Arkansas RFRA law, and not that has anything to do with the current discussion, if, in our area, you were to have a conscientious Muslim cashier at Walmart who’s customer has pork products Walmart will happily bring another cashier to that line so the Muslim can avoid having to tough pork products.

    • Randall Seale April 1, 2015 at 1:06 pm #

      Maybe Ms. Stutzman et al. should let it be known that all profits from cakes baked for gay weddings will be forwarded to US ally Saudi Arabia to help pay for their execution of gays (and all in honor of Apple’s retail stores there).

  9. Johnny Mason April 1, 2015 at 1:45 pm #

    I think everyone, those on both sides of the debate, should take a look at this page. This business owner was asked by a news crew what they thought of the law passed in Indiana and would they serve gay customers. The owner was for the law, said they would gladly serve gay customers, all customers, their pizza, but would not cater a gay wedding. Now, forget for the moment the absurdity of catering pizza at a wedding. Now look at their facebook page and tell me who needs to be protected here? Who is the one being harmed? Which side is showing animus?

    https://www.facebook.com/pages/Memories-Pizza/289745361236608

    • James Stanton April 1, 2015 at 3:09 pm #

      What’s your point, Johnny? Argue on the merits. There’s always going to be people on the extremes who show animus. Let’s not pretend this reflects all opposition to the law.

      I tend to favor religious liberty protections for photographers and florists whose physical presence would be required at marriage ceremonies. I don’t tend to consider fulfilling a catering order to provide pizzas for a gay wedding as celebrating that event but that’s their right. If you go that far you might as well refuse to serve gay customers who walk in the door for a slice. I think in some cases people see this law as a way to express moral disapproval of gay marriage as opposed to violations of conscience.

      Your example actually supports what some people who post here would like to see happen in allowing any business owner to refuse service for any reason. The market would handle them for good or bad. You might not like how that manifests.

  10. Gus Nelson April 1, 2015 at 10:06 pm #

    James: White privilege? Seriously? You are usually much more thoughtful. Moreover, isn’t this the very kind of treatment about which gays are complaining? Being treated not for who they are but for what they are? The same could be said of “personal discomfort.” That’s really weak coming from someone who often has compelling and interesting arguments. Many Christians have a very serious personal conviction that gay marriage is wrong and sinful. Frankly, I wish the Bible said homosexuality is fine so none of this would be an issue. But Scripture does not condone homosexual behavior at any point and clearly points to it as sin at several points. Convicted believers find themselves compelled to accept Scripture’s teaching, even when they wish it were otherwise. To try to turn it into a matter of mere discomfort is like saying that a gay man should stop being gay because it’s just a matter of comfort. I doubt you would take that argument very seriously.

  11. heddrick steele April 2, 2015 at 9:07 am #

    There is merit in the libertarian response that people should just be left alone to make up their own minds how to run their businesses. Those who drive off customers will end up with fewer customers and have their foolishness eventually kill their business.
    There is some logic in it, but it doesn’t take into account the reality of living in America. In many locations there is a monolithic approach due to similarity of origin that could lead an entire town, for example, to be unwelcoming to minorities. It would be a terrible thing to pass through one of those locations, if a libertarian ‘let them be themselves’ philosophy ruled. There’d be no place for a cup of coffee, no place to relieve oneself.
    Should there be some government body enforcing these things. No. Better simply to allow people to dispute what they perceive as mistreatment and give them standing in court to register their dispute. What that means is that a religious person should be permitted to use his/her religious beliefs as a defense, since religion is the first freedom protected in our Constitution. That doesn’t mean they’ll win, but at least they get to be heard before they are deprived of any liberty…the very thing the 1st and 14th amendments, when combined, recommend.

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