Indiana Republicans Exercise Their Right to Be Stupid

03/31/2015 05:39 pm ET | Updated May 31, 2015

The Indiana Republicans got caught leaning way over their skis doing what comes naturally to a lot of Republicans these days; catering to the religious right. After the courts took away Indiana's prohibition against same-sex marriage, the Indiana legislature and their politically ambitious Governor Mike Pence decided to give their religious right constituents a little non-wedding gift. If the state of Indiana must allow marriage equality, then at least, for God's sake, save the florists! And the bakers! And the wedding photographers!

Their ill-considered not-quite carbon copy of the federal Religious Freedom Restoration Act went a step too far. The federal statute was meant to enshrine something already in the Constitution into statutory law, and that is the First Amendment language on the free exercise of religion. Free exercise of religion is important, and necessary. Nobody will argue against it. And if that were all the folks in Indiana were trying for, they wouldn't be in the mess they are in.

Conservatives love the Constitution, so let's start there. It's actually the First Amendment to the Constitution, in the Bill of Rights. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The first half of this is called "the establishment clause" and the second half is "the free exercise clause." They are generally read together, as they were written together. Two yoked ideas, dependent on each other. An established religion prohibits or inhibits the free exercise of other religions. The early colonists may have come here to establish their own religions as supreme, but this nation was founded more than 150 years after the theocracies of the early colonies. The United States was never established as a Christian nation, it was always a conglomeration of creeds, including people with no creeds. And the protection of religious minorities was enshrined from the start.

Let's look at the Supreme Court case the legislators in Indiana point to in defense of their own bill. The Hobby Lobby case was, indeed, decided on free exercise grounds. The free exercise clause restricts government from compelling individuals to do things that infringe on the free exercise of their religion. The Hobby Lobby case was not about the right of Hobby Lobby to refuse to sell their fake flowers to gay couples, it was about the government compelling Hobby Lobby to participate in something that paid for birth control and abortion coverage. Even though I disagree with the notion that a for-profit corporation has any free exercise rights, nevertheless I recognize this is now settled law. However, this is worlds away from the position taken in Indiana.

In the Indiana law, the state is now emboldening those who use religion as an excuse to discriminate against other citizens. The government, in the form of the state of Indiana, is cheerleading for discrimination. Go ahead and refuse to serve anybody you don't like; that's the message. The state of Indiana has your back here. As long as your reason for discrimination has some religious basis, then discriminate to your heart's content!

But there is a huge difference between the exercise of religion and discriminating against customers in a free market system. Any business that engages in interstate commerce is regulated under the 14th amendment to the U.S. Constitution, and that amendment is about equality. The Jim Crow laws were all justified under a twisted Christian ideology, but that justification didn't protect them when the courts ended legal segregation, using the 14th amendment to do so.

Here's the important distinction; nobody is preventing a single Southern Baptist or Catholic florist or baker or photographer from exercising their religion! They can exercise their religion all they want! They can pray five times a day facing the Heritage Foundation if they so choose, and with every breath pray that gay people will be prevented from enjoying the rights and privileges of married life. That is an exercise of religion.

It is not a protected exercise of religion to do something that is otherwise illegal just because your religion has something to say on the matter. Otherwise, how many Christians on the left would be able to refuse to pay their taxes during what their religious leaders term an unjust war?

On occasion, a frustrated moderate Republican is heard to mutter "let's stop being the Stupid Party." And to that, let the people say "Amen."