In one of the most stunning cases of socially conservative overreach in political memory, Indiana's discriminatory Trojan horse "religious freedom" law has suddenly thrust politically poisonous anti-gay politics into the 2016 election cycle. In less than a week, Indiana's "Religious Freedom Restoration Act" has gone from being a big wet kiss to anti-gay social conservatives to an overwhelmingly reviled threat to the state's economy and reputation.
Since signing the law last Thursday, Governor Mike Pence (R) has tried to weather a tsunami of backlash from citizens and businesses by insisting that there's nothing discriminatory about the law, but promising to fix/clarify it by week's end. The swiftness and crushing force of that backlash has even forced Arkansas Governor Asa Hutchinson (R) to reconsider signing his state's RFRA law.
Along the way, though, a raft of Republican presidential hopefuls have jumped on the original law's bandwagon, staking out territory that will endear them to a sizable chunk of their base, but placing them on the wrong side of everyone else. The lone Democrat who matters right now got it right:
The main Republican talking point has been that Indiana's law is the same as the one President Bill Clinton signed into law, and as those of dozens of other states. Sadly, many mainstream media outlets have repeated versions of this falsehood, because the Indiana law is distinctly different in several key respects:
There are several important differences in the Indiana bill but the most striking is Section 9. Under that section, a “person” (which under the law includes not only an individual but also any organization, partnership, LLC, corporation, company, firm, church, religious society, or other entity) whose “exercise of religion has been substantially burdened, or is likely to be substantially burdened” can use the law as “a claim or defense… regardless of whether the state or any other governmental entity is a party to the proceeding.”
...This is compounded by Section 5 of the Indiana law which, mirroring the federal law, provides protections to religious practices “whether or not compelled by, or central to, a system of religious belief.” So entities can seek to justify discriminatory practices based on religious practices that are fringe to their belief system.
Unlike many other states with RFRA laws, Indiana also does not have separate laws protecting LGBT people from discrimination.
That said, many of the same problems with the Indiana law are also true of the federal law. Whatever "fix" or "clarification" Indiana and Arkansas make will still leave citizens in other states vulnerable to discrimination. Federal legislation is needed to protect citizens from laws like these, and pushing for such legislation would be great politics and policy for 2016 candidates, presidential and congressional.
So far, the White House has been cautious about entering the 2016 fray, but when asked if the president would support such legislation, a White House official told me, "President Obama will continue to fight for the protection of LGBT rights, including banning discrimination against people simply because of who they love or who they are," adding, "For example, the president has long supported inclusive federal legislation to address employment discrimination against LGBT Americans, and we continue to believe that Congress needs to act."
Sources at the White House have also told me that as the 2016 races heat up, we can expect the president to be a forceful advocate for issues that are of importance to him, like the Voting Rights Act. If Democrats are smart, they'll make this a potent one-two punch in the next election, because Republicans have little choice, and have shown little inclination to the contrary, but to stand on the wrong side of issues like these. Having Obama out there advocating for them will only force them deeper into unpopular positions.
The stunning swiftness of the Indiana RFRA law's apparent demise is also a stark reminder, though, of the unyielding power of money in politics. It was companies and customers like the state of Connecticut who forced Pence's hand, and they didn't have to donate a nickel. If only they cared as much about voting rights.