The following is guest post from my friend Lyman Stone. The views expressed are solely Lyman’s own, and do not reflect his employer, USDA’s Foreign Agricultural Service. If you, dear reader, are interested in adding your own voice and perspective to Token Dissonance, get in touch with my by email, and we can chat.
“What makes this response particularly instructive is that such bills have been seen, in the past, as a way for religious conservatives to negotiate surrender — to accept same-sex marriage’s inevitability while carving out protections for dissent. But now, apparently, the official line is that you bigots don’t get to negotiate anymore.” –Ross Douthat
By Lyman Stone
As I know Rek’s usual readership keeps up with the news, I’ll skip the summary of events surrounding Indiana’s RFRA (and now potentially Arkansas’ as well) as well as any argument as to what the RFRA actually implies for life in Indiana. These may be interesting questions, but the reader is doubtless as well equipped to answer those questions as I. Rather, Rek asked me to write a guest post in response to a line of speculation I advanced: What happens next? So we’ve got some RFRAs with allegedly new, unique, and uncertain provisions that LGBT activists believe are intended to enable discriminatory treatment. There’s a boycott movement against Indiana with, apparently, some real teeth to it. Governor Pence of Indiana has promised to offer “clarification,” while Governor Hutchinson of Arkansas has suggested he wants the bill before him revised to look more like the Federal RFRA. On face value, it looks like LGBT activists may be able to chalk up a win. But there are some unresolved questions here.
Let’s say that the Indiana RFRA is clarified in such a way as to offer protections of LGBT individuals. Indiana does not currently afford such protections, thus such a change would be momentous. Would LGBT activists then go on to other “red” states, crusading for the passage of gay-friendly RFRAs?
The key argument against Indiana’s RFRA is not that it will actually create discrimination, or even legalize discrimination: it’s already legal in Indiana to discriminate against gay people. The argument is that Indiana’s RFRA shows bad intentions; that Hoosier legislators are haters, and haters should be punished by society on the whole. The argument isn’t about policy details, which is why all the explanations about past RFRA usage and compelling interests, etc, aren’t going to change any minds. If you press those most vocally for or against Indiana’s RFRA, it becomes clear that neither side even knows what effect the RFRA will have. Those shouting loudest on this issue tend to support or oppose RFRA primarily as a way of showing solidarity as allies and striking a blow for, respectively, religious liberty or gay rights.
I say striking a blow for a reason: the fight isn’t about what either side is for, but about what, and especially who, they are against. Or, at least, from the perspective of a liberty-minded social conservative like myself, that’s what it looks like.
It does not have to be this way. Either side could outflank the other handily enough. If RFRA advocates paired Indiana-style RFRA bills with non-discrimination provisions and beefed-up free speech and expression rules, they might not win the LGBT activist base, but they could neuter the most effective criticisms, address the areas that create the biggest concern for conservatives, and provide enough “wins” for supporters of civil liberties to credibly show that “No Gays Allowed” signs are neither the goal or consequence of religious freedom advocacy. On the other hand, if LGBT advocates get non-discrimination laws making LGBT-identifying individuals a protected class attached to a similarly robust RFRA (perhaps in a blue or purple state), they could capture much of the base of support for RFRAs among moderate social conservatives who, rightly or wrongly, worry about religious liberty issues.
If neither side tries such tactics (yes, LGBT advocates have tried to attach non-discrimination laws to RFRAs in red states, but mainly by using language that amounted to poison pills, because the goal was to kill RFRA—discrimination protections or not), then, paradoxically, both sides will probably prove their worst impressions of each other. If conservatives won’t introduce any kind of “clarification” or “fix” aimed at preventing a future of segregation by sexuality, the LGBT community will have ample cause to view conservative-backed RFRAs as Trojan horses, within which lies the promise of entrenched discrimination. On the other hand, if LGBT advocates persistently degrade and demean efforts to protect religious liberty—and respond to such proposals with concerted efforts to drive up unemployment with boycotts that broadly hurt even those with no connection to the laws in question—then conservatives will be entirely justified in calling for more, and more robust, RFRAs. Spitefulness begets spitefulness.
The RFRA in Arkansas did not move through the legislature despite the Indiana boycott, but because of it. LGBT advocates should not be shocked if other states respond to “boycott Indiana” by adopting new RFRAs as well. Watching Indiana be pilloried, punished, and shamed for providing what, to many conservatives, seem like pretty anodyne protections for religious liberty might dissuade other conservatives from taking up the cause, as LGBT advocates hope. Or, and I find this rather more likely, it may lead to religious folk having a deepened sense of isolation and a heightened concern for their own apparently-besieged liberty, and thus pressing harder for RFRAs.
I see this even in my own experience: when the Arizona RFRA was debated, I was extremely skeptical of the idea, and argued against many of my fellow conservatives who believed it was a necessary and good law. But watching the treatment of religiously motivated conservatives in Indiana has altered my frame of reference. The LGBT community seems far more vindictive and far less open to compromise on this issue than I would have expected. Innocent Hoosiers, whose state has languished through Rust Belt decline for decades, are going to suffer so that activists nationwide can make a statement about a law that nobody actually understands and will probably have very little effect anyway.
My goal here is not to try to convince others to adopt a given policy position. Rather, I hope to offer an insight, however speculative, into the worsening future that social conservative activists and gay activists are creating together with alarming speed.
So for me, a pretty deep-red and quite religious social conservative with far too many gay friends and loved ones to write off their experiences, the question is: will either side actually show an interest in governing a diverse society?
I hope so.