The first shot was fired last week in America's 21st century version of Europe's 17th century religious "Thirty Year's War." Indiana Governor Mike Pence signed SB 101 into law, in a private ceremony attended by Christian, Jewish and Muslim fundamentalists, as well as anti-gay religious extremists. Indiana's law is a version of a state Religious Freedom Restoration Act (RFRA), but one which undermines the rule of law and encourages religious vigilantism. I believe this is a not a bad thing for the LGBT community, and an even more momentous event for America.
What, you ask, could possibly be good for gay America in a bill which legitimizes discrimination? And how can this possibly be a productive moment for Americans, considering the tsunami of these "religious liberty" bills that include the twenty states that already have a RFRA, with many others planning their own special ones, all on top of the federal RFRA?
Why is this important for the LGBT community? Kerry Eleveld, a long-time reporter who was the first White House correspondent for LGBT issues after Obama became President, just wrote a piece for Daily Kos where she said,
I am only left to conclude that while [HRC President Chad] Griffin was and still is very much invested in marriage equality, his heart simply isn't in the fight to beat back the backlash that marriage equality has exacted.
As she noted, both Michaelangelo Signorile and I have written about the very noticeable absence of the Human Rights Campaign from the battlefield of state RFRAs and pre-emption laws over the past few months. A graphics designer from Brooklyn, Scott Wooledge, is the leader of the national grassroots efforts. The non-profit bureaucracy seems to have no plan. But it's not just HRC - there is no organized community strategy for dealing with this resistance movement which has suddenly become extremely dangerous and a threat to bring on open organized hostility. A number of people have tried to organize a strategy, beginning last year after the Supreme Court ruling on Burwell v. Hobby Lobby, and its impact on the attempt to pass ENDA in Congress. The Hobby Lobby decision not only defined corporations as persons with respect to basic freedoms, it also elevated religious liberty beyond the longstanding interpretation of the First Amendment. At the time LGBT leaders became so concerned that they basically withdrew support from any attempt to pass ENDA in the House (not that there was ever a chance, given Speaker Boehner's oft-repeated insistence the law was not needed). In spite of all the hand-wringing and hair-pulling, no concerted effort was made to prepare for the future. That future is now, and as we've seen by the silence on the Arkansas preemption law and absence of any significant institutional campaigns to prevent the Indiana, and now Arkansas (HB 1228) and Georgia (SB 129) RFRA bills, the paucity of preparation is glaring.
But in that crisis, that lack of preparedness for what seems like a blitzkrieg from the Right, lies opportunity. Why is the Indiana bill so important? Because unlike the preceding state RFRAs, modeled after the federal version of 1993, this bill makes every person a law unto himself, trusting in his personal sense of religious faith or conscience, and not subject to any state law. It overcomes the limitations placed into the preceding state laws, and effectively guts the laws of contract, consumer protection, anti-discrimination, and even traffic laws, as long as a person has a sincerely held religious belief, however he chooses to define it. It allows private parties to sue one another, and individuals free to sue state actors such as teachers and EMTs. It allows Jews to sue Christians, and Christians, Jews (and Muslims). It even allows gays to turn away believers, as shown hilariously in this short video spoof from Wayne Besen of Truth Wins Out.
It is the state's burden to show a persuasive reason why any violation should be overturned, based on a compelling state interest. And since every American is entitled to be his own church, a "religion of one," with its own rules and belief system, this is a libertarian's wet dream. Or, more concisely, Indiana is now an anarchist state.
Let's not forget that the original purpose of this bill - unlike the purpose of the federal RFRA and the preceding 19 state RFRAs - is to deny equality to Indiana's LGBT citizens. In fear of the impending nationalization of marriage equality by the Supreme Court in June, this is the big one-finger-salute red states are offering in return. The discrimination has already begun.
Why is this a momentous event for America? Because this law is a brazen overreach by fundamentalists who have claimed victim status for decades. It makes a mockery of the concept of religious liberty, and tears down the wall separating church and state, threatening to turn the United States into the 21st century version of the Holy Roman Empire. Their Christian persecution complex has led to this gross, and I would hope, unconstitutional act, and the backlash (#BoycottIndiana) was immediate.
First Marc Benioff of Salesforce.com cut ties, followed by Yelp and then Angie's List shelving plans for an expansion in their home city of Indianapolis. The gamer convention Gen Con, the NCAA (the Final Four is in Indianapolis this coming weekend and the coaches of all four teams have spoken out), the NFL, the NBA, the Big Ten, Cummins, NASCAR, the Indiana Chamber of Commerce, Indiana University, Apple, Twitter, Oracle, Accenture , Dow AgroSciences, Eli Lilly & Co., Roche Diagnostics, Anthem, Emmis Communications, Gap and Levi Strauss,Marriott Nike, American Airlines, Microsoft, Orbitz, Wells Fargo, Symantec, Replacements, Ltd.,Starwood Hotels and the four automakers with plants in Indiana, including Honda, Chrysler, General Motors and Subaru, the Mayors of Indianapolis, Seattle, Chicago, San Francisco, San Diego, the District of Columbia, Portland, Denver, Oakland, and Minneapolis-St. Paul, the Governors of Montana, Connecticut, New York, Vermont, and Washington, the Disciples of Christ, the Unitarian Universalists. the United Church of Christ, and the White House, which had ignored Arkansas last month, stepped up. And even NBA Hall of Famer Charles Barkley, Warren Buffett, a large group of tech CEOs, and the band, Wilco. An extended list is available here, including celebrities and editorial boards.
The Governor first lied about the bill's meaning and claimed we were all misreading it:
This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it. ... For more than 20 years, the federal Religious Freedom Restoration Act has never undermined our nation's anti-discrimination laws, and it will not in Indiana.
But now he has backtracked and is asking for clarification. The simple ask that has to be made is to amend the law with explicit LGBT protections as part of a carve-out in the bill, as well as stand-alone legislation. I'm not holding my breath, based on the Governor's non-responses to questions about legalized discrimination posed by George Stephanopoulos on ABC News' "This Week." In the meantime I'd like to ask all people of faith with intent to discriminate to put a sign in their establishment's window or website stating their intent to discriminate. "No gays, Jews, dogs allowed." You know the drill. If they have no shame, let these good people of faith say so proudly.
The Right is fighting back, invoking President Clinton and the federal RFRA, lying about the significance of this bill compared to the other state laws and the federal law. The Weekly Standard acknowledges the difference - "Indiana's RFRA makes it explicit that the law applies to persons engaged in business as well as citizens in private lawsuits" - and then misleads about its significance throughout the article. This type of response will continue, and encourage bigots to believe they will be tolerated by the state and immune from policing. This will get ugly, because it is a very deliberate provocation meant to create real conflict.
Let's not forget that "religious liberty" was not long ago used to justify racism in America, and that the Klan had a huge membership in Indiana. It was 23 years ago that Pat Buchanan called for a expansion of the cultural cold war at the Republican National Convention, and that war has now become hot in Indiana. The first shot was fired from the statehouse in Indianapolis, but unlike at Fort Sumter in Charleston in 1861, the forces of reason will not be surrendering. They will be blogging, tweeting, demonstrating, lobbying business, and creating comedy skits and videos. SNL got into the act. It even looks like a neologism has been coined - "pence" as a verb, as in "Wow, I just penced up my political career with one stroke of the pen!"
Update - March 31: Today's Indianapolis Star's front page and editorial: