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.