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The longer you look at the substance of Indiana's Religious Freedom Restoration Act (RFRA), the less sense the fight actually makes. But then, that's because the fight isn't really over Indiana's law.
Let's start with the law itself. Religious freedom laws — which already exist in 19 states besides Indiana — say the government can't intrude on a person's religious rights absent a compelling interest to do so. But the government does have a compelling interest in preventing discrimination. So even without the limited LGBT protections the Indiana legislature added to its law on Thursday, it most likely couldn't be used to discriminate.
"No one has ever won an exemption from a discrimination law under an RFRA standard," Douglas Laycock, a law professor specializing in religious freedom laws, told Vox. "There's plenty of precedent saying that if you're seeking exemption from a discrimination law, you lose."
But in most states, there's no statewide anti-discrimination legislation protecting LGBT Americans for RFRA users to try to get an exemption from. As German Lopez writes, in these states, "an employer can legally fire someone because he's gay, a landlord can legally evict someone because she's lesbian, and a hotel manager can legally deny service to someone who's transgender — without citing religious grounds."
The absence of civil rights laws outlawing discrimination based on sexual orientation and gender identity is a much bigger deal than the presence of religious freedom laws. And yet the boycotts of Indiana — the governor of New York cut off nonessential travel and the governor of Connecticut barred state-funded trips — are not being expanded to Florida, or Tennessee, or North Dakota.
Why social conservatives haven't gotten their fight over gay marriage
One of the strangest political facts of the past few years is how completely the politics have reversed on same-sex marriage. In 2004, it was conventional wisdom — though probably wrong — that George W. Bush won reelection because Republicans savvily used same-sex-marriage ballot initiatives to juice evangelical turnout. In 2015, it's possible the Supreme Court will make same-sex marriage a constitutional right — and the Republican Party will barely say a word about it.
There are two things worth noting here. First, the legal changes have come most clearly from the courts, depriving both sides of a fight in Congress, or even in state legislatures.
The second is that Republican Party elites have not organized against these court decisions in the way they have against, say, Roe v. Wade. So far, top Republicans have signaled they would accept a Supreme Court ruling that legalizes same-sex marriage across the country. "I don't expect that we're going to weigh in on this," Speaker John Boehner said of the case.
The result is that for the tens of millions of Americans who oppose the spread of marriage equality and even gay rights, they've lacked both a venue to fight the changes and champions to represent them in that fight.
Enter Indiana's law. As Lopez details in his excellent primer, anti-LGBT groups in Indiana rallied around this law as protecting them from the spread of same-sex marriage. Advance America, a conservative group, said on its website that the law would make sure "Christian bakers, florists and photographers" are not "punished for refusing to participate in a homosexual marriage!" Gov. Mike Pence, for his part, seemed to confirm the fears of LGBT groups when he told the Indianapolis Star that specific protections for gays and lesbians were not on his agenda (a position he has held going back at least to 2000).
What made Indiana's RFRA law a perfect vehicle for this fight was that it really wasn't about same-sex marriage, which many Republican elites quietly support — or at least have no interest in publicly opposing. It was framed, rather, as a question of religious freedom and liberal overreach.
How same-sex marriage broke the Republican Party
Ross Douthat writes that for conservatives, what is and isn't considered bigoted has shifted vertiginously over the last decade: "Positions taken by, say, the president of the United States and most Democratic politicians a few short years ago are now deemed the purest atavism, the definition of bigotry gets more and more elastic, and developments that social liberals would have described as right-wing scare stories in 2002 or so are now treated as just the most natural extensions of basic American principles."
Amidst these changes, the GOP's position on gay rights has fractured. There are powerful Republicans — including many in Washington — with roughly the same position on same-sex marriage as Nancy Pelosi; they live in fear of the idea that their friends or their children will think them bigots. And then there's a powerful part of the Republican base that still favors a constitutional amendment defining marriage as a covenant between man and woman.
But Indiana's religious freedom law unites them. Top Republicans may not agree with much of their base on same-sex marriage, but they do agree that the government shouldn't be telling evangelical wedding planners that they need to find a deejay for a wedding between two men. As Matt Yglesias writes, the Indiana fight is proof of something conservatives often say and liberals often dismiss: the slippery slope of social justice is real.
And so the Indiana law offered a fight that, unlike most recent issues around gay rights, could actually be joined. It presented actual legislation making its way through a legislative process rather than the courts — so both sides have a chance of changing the outcome. And it presents an issue where the national Republican Party is actually willing to join with its base to take on the gay rights movement.
In that way, the fight over Indiana's law can only be so broad and so bitter because the stakes are quite low. If the stakes were higher — if the law really would lead to widespread discrimination against LGBT Americans — Republican Party elites wouldn't touch it and the courts would probably destroy it. But the anger over the bill speaks to the fact that in many parts of the country, same-sex marriage is becoming law much faster than it's becoming accepted.
