With public support for same-sex marriage on the rise, a spate of new religious "liberty laws" were seen as safer ground for Republicans on social issues. But furor over the latest such measure is putting that assumption to the test.
Indiana Gov. Mike Pence has been the subject of intense criticism from the left and from business groups since he signed his state's Religious Freedom Restoration last week, with the law being broadly painted as state-sanctioned discrimination against gay and lesbian men and women.
On Monday, the debate grabbed hold of the Republican presidential primary. Candidates lined up to show their support for it and the embattled governor who signed it: Jeb Bush said Pence did the "right thing," Rick Santorum said he stands "in defense of religious liberty and real tolerance," and Marco Rubio said people should be able to "live out their religious faith in their own lives."
With the exception of the libertarian-minded Rand Paul, lockstep support from the rest of the Republican field—most of whom are courting evangelical voters—now looks all but guaranteed. (Sen. Ted Cruz already had introduced legislation in the Senate that would repeal laws in the District of Columbia that force religious institutions such as Georgetown University from recognizing gay and lesbian groups.)
The question now is whether the candidates can sell the public on the idea that these laws ward against discrimination rather than facilitating it, something even some social conservatives admit they've been unable to do in Indiana. And if they can't, it could pose a problem in the general election, much like the questions of gay marriage that the party was hoping to avoid.
At the center of the controversy are laws that would let private citizens object to laws that they say burden their religious convictions—in one example, whether a privately owned bakery would be forced to make a cake for a gay wedding in compliance with local non-discriminatory ordinances.
Known as Religious Freedom Restoration Acts, state laws like the one in Indiana have existed for nearly two decades after Congress passed a federal version of it in 1993. But as support for gay rights—and in particular, gay marriage—have grown, social conservatives have turned with fresh urgency to statehouses and the courts to protect them against what they see as a growing intolerance toward the religious.
Critics and detractors differ wildly on how such laws play out in practice, but neither side denies that the debate taking place in Indiana is poised to spread.
In 2015 alone, fifteen states other than Indiana have considered approving RFRAs, according to the National Conference of State Legislatures. (Nineteen of them already have such laws, according to the Family Research Council.) Some of them, including Arkansas, are readying to send the bill to the governor, who has said he will sign it.
The legislative push follows a judicial strategy in which social conservatives defend the right of Christian business owners to refuse their service to gay men and women if it violated their religious beliefs. In the most famous example, conservatives challenged a law in New Mexico that made it illegal for a pair of Christian photographers in 2006 to refuse to take pictures at a "commitment ceremony" between a gay couple.
Republican primary voters demand that their presidential candidates defend people of faith, said Brent Bozell, a conservative activist who founded the Media Research Center. He said candidates should embrace the spirit of these types of laws, even if a libertarian-minded principle makes them oppose their implementation.
"If you're not willing to do that, then by all means, don't ask for support from social conservatives," Bozell said. "And oh by the way, you'll never win the presidency."
Polls suggest the legislation is risky but winnable for the GOP: According to a Pew Research Center survey, 47 percent of Americans say companies shouldn't be forced to provide services to same-sex marriages over the religious objections, nearly matching the 49 percent who say they should.
But lately, debates over this type of legislation have often not gone Republicans' way. The Indiana law has drawn objections from high-profile groups that normally steer clear of direct political involvement—including the NCAA, which is hosting the Final Four men's basketball playoffs in Indianapolis on Saturday and Monday. Apple CEO Tim Cook wrote an op-ed in The Washington Post this week criticizing the law.
The backlash has been evident in other states that have considered similar types of legislation. In Arizona last year, Republican Gov. Jan Brewer—with the full-throated support of the state Chamber of Commerce—vetoed such a law because she said it would be bad for the state's business climate.
"It tells you a lot when the opposition to these bills are led in large part by business," said Fred Sainz, spokesman for the Human Rights Campaign. "So when a coalition splinters, and not just splinters but fights back aggressively against legislation in a very public manner, it tells you how wacky these bills are."
The question is whether the debate would play out the same way in other states against the backdrop of a national election. Defenders of the law say they are convinced that when people learn more about the law, they will grow more supportive. The focus of the debate, they say, needs to be on the protections it provides men and women and faith, and not the perceived discrimination it levels against gay men and women.
Thus far, they concede the debate hasn't played out that way.
"It's definitely concerning that the law is being painted the way it is," said Travis Weber, director of the Center for Religious Liberty at the Family Research Council. "The word 'discriminating' is being used to describe this law."
This article is from the archive of our partner National Journal.
We want to hear what you think about this article. Submit a letter to the editor or write to firstname.lastname@example.org.