The Indy Star reports that Republican presidential candidate Donald Trump plans to name Indiana Gov. Mike Pence (R), a man who once described himself as “a Christian, a conservative and a Republican, in that order,” as his vice-presidential running mate. So you would expect religious conservatives to be over the moon. They aren’t:
FRC's Tony Perkins says he will not support Pence as VP.
— toddstarnes (@toddstarnes) July 12, 2016
Perkins, for those who aren’t familiar with the power brokers in Republican politics, is the head of the Family Research Council, an anti-LGBT hate group that is a major player in Christian conservative circles. In an interview with NBC News’ Leigh Ann Caldwell, Perkins claimed that Trump “can do better” than Pence. And suggested that the real estate mogul choose “someone who has not capitulated on something as fundamental as religious freedom” as his running mate.
The anti-LGBT leader is referring to a bill that Pence signed — and then significantly watered down — which would have given individuals who object to LGBT people on religious grounds a powerful legal defense if they were accused of illegal discrimination.
Pence signed the bill surrounded by anti-LGBT activists. One of them praised the bill for giving anti-LGBT business owners “protection from those who support homosexual marriages and those who support government recognition and approval of gender identity (men who dress as women).” Another said that an effort to add provisions to the law providing that it is “not about discrimination” could “totally destroy this bill.”
The bill was the Christian right’s effort to build a firewall around anti-LGBT individuals, permitting them to continue to engage in discrimination even after the rights of LGBT people began to be recognized under the Constitution and under some municipal ordinances. The bill took its name, and borrowed much of its language, from the federal Religious Freedom Restoration Act (RFRA), the law that was at the center of the Supreme Court’s decision in Burwell v. Hobby Lobby. Prior to Hobby Lobby, the Supreme Court recognized that religious liberty claims could not be used to undermine the rights of others, especially in the business context. As the Court held in United States v. Lee, “when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
Hobby Lobby, however, held for the first time that a religious liberty claim could prevail even it it diminished the rights of others. Armed with this reimagining of the balance of power between religious objectors and the rest of society, many social conservative groups pressed state lawmakers to enact RFRA-like laws in their states. One of their primary goals was to protect business owners with anti-LGBT views who wanted immunity from laws that forbid discrimination.
Initially, Pence handed these social conservatives a victory when he signed his state’s RFRA into law. Yet he faced a backlash almost immediately. The Indy Star published a rare front page editorial calling on Pence to “fix” the law to “send a clear message that Indiana will not tolerate discrimination.” A raft of businesses, ranging from NASCAR to Apple to Subaru (which had plans to open a plant in Indiana) protested the new law.
It was a staggering defeat for social conservatives who were struggling to gain a beachhead against the growing recognition that LGBT people are human beings
And then, just days after he signed the original legislation, Pence caved! The “fix” Pence signed did not completely neuter the state’s RFRA law, but it did provide that the law does not authorize businesses “to refuse to offer or provide services, facilities, use of public accommodation, goods, employment, or housing to any member or members of the general public” on the basis of a list of protected traits that includes “sexual orientation” and “gender identity.”
It was a staggering defeat for social conservatives who were struggling to gain a beachhead against the growing recognition that LGBT people are human beings entitled to the same civil rights as anyone else. Indiana is a red state. Pence is an extraordinarily conservative governor. Indeed, as a member of Congress, Pence led the Republican Study Committee, a large group of conservative lawmakers whose leader functioned as a spokesperson for the House of Representatives’ right-wing during much of Pence’s tenure in the House.
If this effort to protect anti-LGBT discrimination could fail in Mike Pence’s state, what chance did it have of thriving elsewhere? And if Mike Pence would cave so quickly, how could the Christian right expect other governors to stand their ground?
Though the tale of Indiana’s RFRA law is very much a tale of overreach by social conservatives, Pence himself also deserves a large share of the blame for exposing the Christian right’s weakness. Though Hobby Lobby did open the door to laws that allow religious objectors to diminish the rights of others, it is far from clear that the Supreme Court will allow this new regime to permit anti-LGBT discrimination. Justice Anthony Kennedy, the Court’s swing voter on such issues, penned a concurring opinion in Hobby Lobby warning that religious liberty (at least at the federal level) may not “unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.” And he’s historically been skeptical of many state laws that subject LGBT Americans to inferior treatment.
The vision of “religious liberty” embraced by the original Indiana RFRA bill’s supporters was a sharp departure from past precedent. The backlash against this bill was hardly surprising.
And so, by playing his role in this game of overreach, Pence handed Christian conservatives a defeat that did far more than halt their efforts to protect anti-LGBT business owners in Indiana — it weakened their hand in the battle over “religious liberty” throughout the country.