If your political goal of the moment weren’t to carve out legal safe spaces for discriminating against gays and lesbians, but merely to protect individual religious artisans—bakers, florists, photographers—from being forced to lend their labor to the planning and execution of same-sex weddings, think of how you’d go about it.
This is obviously how conservatives frame their efforts to pass “religious freedom” laws, which provide all manner of businesses the ability to defend acts of discrimination in court. But on the face of it, they’ve proposed a solution to a different problem than the one they claim to care about.
The dilemma conservatives claim to care about is actually pretty easy to resolve, if you examine its unspoken elements. But those elements include a presumption that gays and lesbians are generally entitled to the same kinds of legal protections as other minorities. The advocates of Indiana’s Religious Freedom Restoration Act aren’t willing to grant that presumption, though, and they thus find themselves hoist on the petard of their own bad faith.
The very notion that a Christian photographer or florist should be able to decline business solicitations from same-sex couples implies that the vast majority of entrepreneurs should not. When you look at the conundrum not just from the perspective of religious persons, but from the perspective of the entire market, the remedy becomes clear. A legal default prohibiting discrimination against LGBT people as a class, with a modest carveout for individuals in creative trades who have religious objections to making things that contribute to the planning and execution of same-sex weddings.
But if you frame the carveout this way, then the anti-discrimination default comes with it. Conservatives aren’t willing to grant it, so instead we get these kinds of disingenuous or blinkered arguments. Here we have the odd spectacle of National Review’s editors presuming to speak for gays and lesbians in Indiana, as if gay people and religious Christians were similar in their antitheses to Catholics and Protestants, and thus making a mortifying error:
“Gay people and people who object to the idea of homosexual marriage have been coexisting rather easily in Indiana for a great long while now, without the benefit of any state law telling them that this must be.”
Gay people and “people who object to the idea of homosexual marriage” have been coexisting in Indiana “for a great long while,” not because of a law requiring it, but because of one telling gay couples who want to marry that they’re free to leave the state. This may have seemed like “rather easy” coexistence to conservatives, but only because it was forged entirely on their terms.
Marriage equality has been the law of the land in Indiana for less than a year. But rather than update the terms of coexistence to enshrine this new equality generally, creating allowances for ma-and-pa artisan, conservatives set out to erect a barrier of maximal circumference in front of it.
This backfired spectacularly, and predictably, in the only way it could, setting religious conservatives back further from where they started.
When it became clear that Indiana’s Religious Freedom Restoration Act created a large theoretical space for entrepreneurs to discriminate—where anti-gay business owners could refuse to serve gay customers and then let judges sort out who was in the right—Indiana Republicans faced demands to amend the law, so that it couldn’t be used to this end.
And that’s what’s happening. The updated Indiana law will prohibit business owners from using the RFRA as a defense against refusing “to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service.” (Emphasis added.)
This answers equality concerns by saying anti-discrimination laws trump RFRA. As those laws spread, the legal safe space will shrink and shrink until it disappears entirely. Even for the creative tradespeople.
Conservatives could still create specific carveouts, so that religious bakers and their artisinal colleagues can be excepted. But the problem is that the exception will prove the rule of equality. And they don’t want that, either.