Last week my home state of Indiana passed a Religious Freedom Restoration Act.
The federal government has one, as do several other states. They were originally designed to prevent governments from banning religious practices, such as exempting members of the Native American church from controls on peyote for its sacramental use.
But some allege that the Indiana law, like one proposed in Arizona last year, gives business owners and employees a right to refuse to serve same-sex couples, citing their religious freedom.
There’s reason to infer that this would not have been an unfortunate side effect but rather the intent of the law in the first place. After Arizona’s bill was vetoed last year amidst a torrent of criticism, the lawmakers in Indiana would have known that the public would perceive the bill as being anti-LGBT*.
And last year, after the Indiana Statehouse Republicans advanced a state constitutional amendment banning same-sex marriage to prevent a state court from striking it down, a federal court struck down the state’s ban.
For two decades of mostly Republican rule the state government didn’t see fit to pass this act. But when same-sex marriage became legal, suddenly religious liberties needed protection. Indiana Governor Mike Pence denied that this has anything to do with discrimination, but it’s hard to find anything else that has changed that would suddenly require this law after two decades.
While there’s some legal debate as to whether it would actually allow businesses to discriminate against anyone or even if discrimination was already legal before the law passed, the backlash is undeniably real. Conventions, businesses, religious denominations and the NCAA have all threatened to move away from the state or restrict travel and investment to it. And while there are no polls yet to gauge public opinion, tens of thousands have signed an online petition calling for Pence to be removed from office, and the social media reaction was overwhelmingly negative.
Indiana isn’t that red of a state; it voted for Obama in 2008 and rejected the Republican candidate for Senate in 2012 when one of his more socially conservative stances came to light. So it stands to reason that the opinion of a sizable political minority in Indiana was trampled to pass a deeply controversial bill.
It is nearly impossible to imagine a similar law getting through the U.S. Congress in any circumstances, for better or worse. The U.S. government’s structure means that even if a minority party has 40 percent or less of Senate seats, a minority of House seats and lost the last presidential election, they can still kill almost all legislation they don’t like.
This prevents most deeply controversial laws from passing without any consent from the minority party, but as of late has increasingly kept anything at all from passing because almost everything the majority does is viewed as existentially offensive by the minority.
That system has definite benefits. The U.S. is rather narrowly divided politically; it’s been a few decades since a presidential election was decided by more than 10 percentage points. It makes little sense to allow policies completely unacceptable to a narrow political minority to pass, barring serious harm dealt to a distinct group of Americans due to the intolerance of a minority, such as segregation and the systemic repression of voting rights based on state.
But the minority also has a responsibility to draw distinctions between policies they merely dislike and policies that are absolutely unacceptable. Reasonable economic stimulus, job creation bills, light gun regulation supported by 90 percent of Americans, minor adjustments to the health care law and approval of a pipeline shouldn’t be as despicable as the different parties have made them out to be.
While some of that might verge from wishful thinking into fantasy, I would still prefer gridlock to the fiasco in Indiana.