The light-speed legislative “fix” for Indiana’s Religious Freedom Restoration Act is a gobsmacking, humiliating defeat for the religious far right, and a stunning, couldn’t-be-predicted demonstration of where the mainstream now lies on LGBT rights.
More than defeat, it was political jiu jitsu: all the force and passion that had impelled the RFRA forward suddenly got turned against its proponents, to devastating effect. A law that was intended as a consolation prize for the faction that lost the fight on gay marriage has now become evidence of how far outside the mainstream – even the mainstream of Indiana – that faction actually is.
On top of it, the controversy has made it more likely that Indiana will get a statewide LGBT rights bill next year. The state’s largest newspaper is behind it, as are the mayor of Indianapolis and much of the business community.
The new fix forbids using RFRA for the main reason its most ardent proponents wanted it: to gain religiously motivated exemptions from laws in Indianapolis and other cities that forbid discrimination in employment, housing, and places of business on the basis of sexual orientation or gender identity. As the religious right’s losing battle against homosexuality enters its final phase, Indiana’s RFRA has been declawed. It will no longer be a cudgel for the culture war. Indeed, arguably it is now the most progressive of all 20 state RFRAs.
RFRAs can potentially be used to challenge almost any state or local law or practice – from building codes to prison regulations to school curricula – on the grounds they violate someone’s exercise of religion. We can debate whether or not it’s wise or fair to give special rights – that is, accommodation over and above what the Constitution’s Free Exercise Clause requires – to religious practitioners. But the point is, from its actual language, there was no reason to think Indiana’s RFRA was only about gay rights.
Except, for its key proponents, it was. Governor Mike Pence ineptly tried to claim otherwise, and looked foolish, if not dishonest. But to know the truth, all you had to do was read what the web sites of groups like the Indiana Family Institute and Advance America had been saying for months. A florist who claimed her "relationship with Jesus Christ" prevented her from arranging some "twigs or sticks in a vase" for a gay customer's wedding has become the heroine of this movement. The law of the RFRA was more complicated than many people understood, but the anti-gay politics were not.
The Indiana legislative fix smoked out this truth. According to the Heritage Foundation, the fix “amounts to nothing less than a wholesale repeal” of RFRA. And according to the group led by Eric Miller, who was an honored guest at Pence’s bill signing, RFRA will be “destroyed” if “Christian” businesses can’t use it to turn away homosexuals.
Finally, some candor.
For a long time, groups like Miller’s traded on the perception that they represented the mainstream. But Miller and his colleagues overreached, and the RFRA controversy demonstrated that they are actually on the fringe.
As recently as a generation ago, gays and lesbians were widely despised: fired from government employment, arrested for their private sexual conduct, openly demeaned by politicians. Most Americans reported unfavorable attitudes toward them.
But today, the NCAA and NASCAR (and you can’t get any more middle-American than those) leap to disassociate themselves from right-wing religious groups who have become obsessed with scapegoating gays for their own declining support and relevance. Their fleeting success with Indiana’s RFRA was a briefly encouraging paroxysm for groups that have otherwise “begun to seem like the enemy in Sun Tzu’s Art of War—exhausted, bewildered, devoid of hope or spirit.”
That's now more true than it was a week ago. We have seen the mainstreaming of outrage against the very idea of anti-gay discrimination. Contrary to the sputtering of Tea Party lunatics, support for gay rights is not a matter of “LGBT Activist Fascists” intimidating politicians and business leaders. Gays and lesbians, by themselves a small minority, do not have that kind of power.
The movement for LGBT rights has succeeded, instead, due to an extraordinary mixture of rational persuasion, empathy, friendship, family bonds, and economic self-interest. And the Indiana controversy specifically has been about (mostly) heterosexual business, religious, and civic leaders, politicians, and cultural icons recognizing that they have gay friends, customers, family members, congregants, co-workers, and employees whom they don’t want to see treated as second-class citizens.