The biggest affront to gay equality in America today is the fact that same-sex couples in 13 states are still prevented from marrying. The laws of Arkansas, Georgia, Louisiana, Kentucky, Michigan, Missouri, Mississippi, Nebraska, North Dakota, South Dakota, Texas, Ohio, and Tennessee are discriminatory, callous in their effects, and may violate the Constitution. Overturning those laws is the most urgent gay-rights cause. Once they fall, whether through a Supreme Court decision or legislation, the benefits that marriage confers on couples and society will increase.
And they will fall. More just marriage laws lay ahead!
But they haven't fallen yet. So it is strange to see Indiana, where same-sex couples can and do wed, emerge as the focus of national controversy on gay rights.
The cause is Governor Mike Pence's decision to sign legislation called the Religious Freedom Restoration Act. Critics of the law say that it is a thinly veiled response to anti-discrimination cases like one in Oregon, where state authorities want a bakery to pay a $150,000 fine for refusing to make a cake for a lesbian couple's wedding, or a similar case in New Mexico, where a photography studio lost a lawsuit filed when its proprietors refused to shoot the wedding of a same-sex couple. Supporters of the law, like religious liberty expert Douglas Laycock (a vocal gay-marriage supporter), argue that its actual affect will almost certainly be to afford greater protection to many religious minorities. And he thinks it is unlikely to stymie gay rights.
Critics of the law have seized the upper hand in the battle for public opinion. "The list of businesses, governments, and famous people boycotting the state of Indiana over Gov. Mike Pence's decision to sign the Religious Freedom Restoration Act is still growing," Robby Soave writes. "Now even Nick Offerman—the comedian and actor who played libertarian hero Ron Swanson on NBC's Parks and Recreation—has cancelled his upcoming Indiana comedy tour dates. Ashton Kutcher, Larry King, Charles Barkley, and a host of other celebrities have made similar declarations, as have several companies, cities, and Connecticut Gov. Dannel Malloy—even though Connecticut has had RFRA in place for the last 20 years."
This puzzles me.
When 13 states prohibit gay-marriage outright, what sense does it make for gay-rights supporters to boycott a different state where gay marriage is legal?
Being barred from marriage puts a significant burden on gay couples—a burden many orders of magnitude greater than the relatively small possibility of being refused by an atypically religious photographer or baker in the course of planning a same-sex wedding (the outcome the law's opponents assert to be its true purpose). And there is no reason to think this law would allow a hotel or a restaurant to exclude gay customers, or that any hotels or restaurants are interested in doing so.
So why is Indiana public enemy number one?
The talented band Wilco has cancelled its May 7 show in Indianapolis, commenting that the law "feels like a thinly disguised legal discrimination." But Wilco is playing two April shows in Texas, a state that doesn't yet issue marriage licenses to gays. That is, Texas engages in not-at-all-disguised discrimination. Wilco also has upcoming shows in Missouri, Ohio, and Kentucky, other states that don't grant marriage licenses to gays at all despite court rulings (which are presently stayed) declaring that its existing policy constitutes unconstitutional discrimination. Indianapolis, by contrast, actually has a municipal statute that bans anti-gay discrimination!
Then there's this:
NASCAR said in a statement Tuesday that it was "disappointed" by the legislation, and the NCAA, which has had its headquarters in Indianapolis since 1999, says it is concerned about the law's effect on future Indiana events.
NASCAR hosts events at tracks in the following states where gay marriage is illegal: Kentucky, Michigan, and Texas. Are future events in those states in doubt?
The reaction from politicians who oppose the law is confounding in its own way.
Most notable is Hillary Clinton, the presumptive Democratic frontrunner. She published this short statement on Twitter: "Sad this new Indiana law can happen in America today. We shouldn't discriminate against ppl bc of who they love #LGBT." I wholeheartedly agree that no one should discriminate against anyone for being gay. But it isn't lost on me that I started championing that position more than a decade before the Democratic frontrunner, who opposed allowing gay couples to marry one another as recently as 2013! Now that she's changed public positions—a shift that perfectly tracked broader public sentiment —she declares Indiana out of step with the times for making gay weddings legal, because refusing to bake cakes for them may be legal, too. In other words, Indiana's "sad" position today is far more progressive than Clinton's own stance was just a few years ago.
"I know that many in our country still struggle to reconcile the teachings of their religion, the pull of their conscience, the personal experiences they have in their families and communities,” Clinton said in 2013 when she came out in favor of gay marriage. “And people of good will and good faith will continue to view this issue differently. So I hope as we discuss and debate, whether it’s around a kitchen table or in the public square, we do so in a spirit of respect and understanding.”
Two years ago, she thought people who wanted to deny gays the right to marry had "good will" and "good faith." She encouraged us to offer them understanding. Now, people who merely oppose state sanctions against a rare, far less burdensome form of discrimination make her "sad" about the state of America. At least her latest rhetoric is preferable to the stance she took as a Senate candidate, when she avowed that she would've supported the Defense of Marriage Act (just as her husband had) and declared that "marriage has got historic, religious, and moral content that goes back to the beginning of time and I think a marriage is as marriage has always been, between a man and a woman."
She would later explain her evolution:
Like so many others, my personal views have been shaped over time by people I have known and loved, by my experience representing our nation on the world stage, my devotion to law and human rights and the guiding principles of my faith.
Clinton's 2013 explanation may help many Democrats support her bid for the presidency enthusiastically, even as they presume that people who haven't yet evolved on the issue—many of whom haven't benefited from personally knowing as many gay people, been constantly surrounded by cosmopolitans, represented our nation on a world stage, seen the connection to global human rights, or been guided by the same progressive spiritual leaders—to be despicable bigots. The speed at which resisting change transitions from understandable to unthinkable just happens to track the speed at which the most prominent Democrats do it.
As best I can remember, I have never opposed gay marriage. It's a policy that never even occurred to me until I came across an Andrew Sullivan piece on the subject. His eloquence sold me from the start. I began arguing in favor of gay marriage with my grandparents at dinner. I've kept arguing in favor of it for the entirety of my career as a professional journalist, even early on when I had editors and bosses who vehemently opposed it. Over the years, I've watched a lot of people shift from opposing to supporting gay marriage, as have we all. Look at the trends:
Were all those converts to gay-marriage bigots before their conversions? Did they deserve to be punished? Consider that Bill Clinton signed, and Hillary Clinton supported, federal laws that blatantly discriminated against gays. As noted, Hillary didn't announce her support for gay marriage until March 18, 2013. She has, of course, paid no penalty for her influential acts against gay equality. (Far from boycotting her, Governor Malloy of Connecticut endorsed her for president in 2008.)
That's how it works for elites. As a point of contrast, that small-time Oregon baker refused to bake that cake for a gay wedding on January 13, 2013—weeks before Hillary would endorse a gay couple's right to even have a wedding. The penalty Oregon recommends for that baker: $150,000. I think Christian bakers should happily bake for gay weddings (I've written that Christian photographers should happily photograph them). I don't think doing so is prohibited by their faith. It's arguably in keeping with it. I nevertheless see something unjust in that juxtaposition.
In the thick of the fight, when speaking out on behalf of gay marriage could've make a significant difference in advancing equality, celebrities weren't willing to boycott populations on the wrong side of the issue, putting them crosswise of a majority of their fans and their wallets. Corporations weren't yet exercising their free speech rights as corporate persons to support gay equality while being cheered by progressives who showed no discomfort with such entities engaging in political speech.
Hillary Clinton, Barack Obama, John Kerry, John Edwards, and many other Democratic political elites echoed majority opposition to equal recognition for same-sex relationships (though their Republican opponents were generally much worse).
Now that public opinion has thankfully shifted, marriage traditionalists have thankfully been routed, gay marriage in all 50 states is thankfully inevitable, and its opponents are a waning minority incapable of imposing any cost on political opponents, elites who support gay marriage are suddenly very self-righteous and assertive. Now that those who would discriminate against gays are a powerless cultural minority that focuses its objectionable behavior in a tiny niche of the economy, elites have suddenly decided that using state power to punish them is a moral imperative. The timing suggests that this has as much to do with opportunism, tribalism, humanity's love of bandwagons, and political positioning as it does with advancing gay rights, which have advanced thanks to persuasion, not coercion.
Going forward, non-bigoted Americans are inevitably going to reach different conclusions regarding the tensions among non-discrimination law, freedom of association, freedom of expression, and freedom of conscience—thorny issues all (unless one just ignores the fact that there are multiple core rights at stake). So long as gay equality is the goal, a better focus for fury than religious-liberty exceptions are unjust marriage laws in Arkansas, Georgia, Louisiana, Kentucky, Ohio, Michigan, Missouri, Mississippi, Nebraska, North Dakota, South Dakota, Texas, and Tennessee.