What Will Bobby Jindal's 'Marriage and Conscience Order' Actually Do?
The symbolism of the Louisiana governor’s effort to grant impunity to same-sex marriage discrimination outstrips its legal import.
The late Earl Long was governor of Louisiana, on and off, for more than a decade. “Uncle Earl” was a colorful, corrupt, and bizarre figure, even for the Pelican State; but “[s]omewhere along the line,” his lieutenant governor, William Dodd, wrote, “Earl Long changed from an amateurish shoe-polish salesman and political camp follower into a sound businessman and excellent government administrator.”
Louisiana’s present governor, Bobby Jindal, entered office as a capable administrator and seems determined to leave it as an amateurish salesman.
Jindal on Monday announced an exploratory committee to prepare for a presidential run. (Why not? All the other kids are doing it.) The next day, he issued a remarkable document, Executive Order BJ-2015-8, the “Marriage and Conscience Order.” The order was released just hours after a committee of the Louisiana Legislature defeated the “Marriage and Conscience Act,” HB 707, a bill designed to protect anyone in the state who acted “in accordance with a religious belief or moral conviction about the institution of marriage”—in other words, who discriminated against same-sex married couples. Its protections covered, for example, state contractors who might discriminate against employees in same-sex marriages; licensed professionals, such as doctors, who refuse to provide services to same-sex couples; and businesses that refuse to accommodate same-sex couples.
Indiana and Arkansas earlier this year passed much milder bills that would have had similar effects. After the business community, the NCAA, and Walmart spoke out against them, both states rewrote the laws to make clear that they didn’t do what HB 707 explicitly said it would do.
Similar voices weighed in on HB 707. IBM sent Jindal a letter warning that “IBM will find it much harder to attract talent to Louisiana if this bill is passed and enacted into law." Stephen Perry, the head of the New Orleans Convention and Visitors Bureau, issued a statement saying that the bill “has the possibility of threatening our state's third largest industry and creating economic losses pushing past a billion dollars a year and costing us tens of thousands of jobs."
That kind of warning may have frightened off Indiana Governor Mike Pence and Arkansas Governor Asa Hutchinson, but Bobby Jindal is made of sterner stuff.* “I have a clear message for any corporation that contemplates bullying our state,” he wrote in a New York Times op-ed. “Save your breath.”
It turns out he didn’t speak for the legislature, however; a committee voted to bury HB 707. Within hours, Jindal had issued an executive order that sounds as if it does what the bill would have done.
Its effect is far from clear. The Democratic speaker pro tempore of the Louisiana House dismissed the order as “overreaching and more than likely unenforceable.” Perry, of the Convention Bureau, said it was “largely a political statement” that “will have very little practical impact.” The new order, in fact, seems likely to achieve very little—except what Jindal, who vacates the governor’s office next January, plainly wants. It puts Louisiana firmly on record as a place same-sex couples, and their families and friends and employers, should avoid, for work or play.
As The Washington Post has pointed out, the executive order seems at a minimum like hypocrisy—Jindal denounced Obama’s enforcement of an existing statute, the Immigration and Naturalization Act, as “an arrogant, cynical political move.” As I’ve noted before, however, executive-power hypocrisy is a bipartisan political pandemic. What’s more remarkable is that the governor has designated Louisiana an official discrimination zone, even though he has almost no power to do so.
The executive order says that religious freedom is of “preeminent importance,” but it explains that freedom extends to only one kind of belief: that of any “person” who “acts in accordance with his religious belief that marriage is or should be recognized as the union of one man and one woman.” It then quickly adds that “this principle [should] not be construed to authorize any act of discrimination.”
The rejected bill said the same thing; but what it provided—and what the executive order purports to provide—was that state government could not take any “adverse action” against anyone who did commit an “act of discrimination”—not even scold them. That’s not authorization for discrimination; it’s impunity for discriminators.
But unlike the legislature, the governor has relatively limited power to actually change state law—much less Article I, Section 3 of the state constitution, which provides that “[n]o person shall be denied the equal protection of the laws;” Section 12, which forbids “arbitrary, capricious or unreasonable discrimination based on . . . sex;” or Article II Section 2, which says that no official of one branch “shall exercise power belonging to either of the others.”
Much of Jindal’s executive order is actually occupied with rather mild-mannered suggestions to state agencies. To begin with, the order notes that Louisiana’s current Religious Freedom Restoration Act, passed in 2010, reads as if it covers only individuals and tax-exempt religious organizations. But, says the order, the Supreme Court interpreted the federal RFRA to cover Hobby Lobby Stores, a for-profit company; other Louisiana-state laws cover corporations as “persons”—would it be such a big deal for the state to pretend that its RFRA does the same?
The order next says that government “should” take “no adverse action” against those who reject same-sex couples; that covers revoking tax-exempt status for charities, penalizing state contractors or licensed professionals, or “deny[ing] or withhold[ing] ... any benefit” under state programs.
Any first-year law student, however, knows that “should” is not “shall,” because the governor can’t singlehandedly change the statutes under which state agencies run. He does say that state agencies are “authorized and directed” to interpret existing law to protect for-profit corporations, to read into the state RFRA a rule that religious discrimination against same-sex couples is permitted; but that doesn’t mean they have to—especially because he is not even in charge of legal interpretation. That job that belongs to Louisiana’s “chief legal officer,” the elected attorney general, James D. “Buddy” Caldwell. Caldwell’s office has not issued an opinion on the order, and a spokeman Wednesday would say only that “[i]t would be inappropriate for the office to provide legal analysis on a matter that . . . may be subject to litigation.”
It’s certainly not harmless; it may provide cover for some wretched jack-in-office somewhere in Louisiana to proclaim his or her private, homophobic state policy. But its major effect will likely be political. It may, perhaps, provide some boost to Jindal’s presidential campaign, meaning that JINDAL ‘16 will get nowhere faster than it otherwise would have.
Earl Long is the first governor of Louisiana I can remember. The whole country was electrified when, during Long’s last term, some of those around him determined that he would be happier in the state psychiatric hospital in Mandeville. Long was hustled off to a private room, but he eventually fired the hospital director and walked out the door.
Bobby Jindal isn’t crazy, but he has been acting a bit strange. He came to office the object of high hopes: a Rhodes Scholar, a health-policy wonk, and an intellectual who for a time headed the state-university system. He seemed like a rising star that heralded the dawn of a new, diverse Republican Party. “We’ve got to stop being the stupid party,” he said only two years ago.
Now his public proclamations are of impending doom for Christianity, and the peril of sharia law. Ambition can do strange things to even a powerful intellect. Jindal, now one of the least-popular governors in the country, seems a bit like Captain Ahab in Herman Melville’s Moby Dick. Obsessed with tracking the White Whale, Ahab smashes the quadrant he needs to navigate.
“Old man of oceans!” muses his first mate, Starbuck. “Of all this fiery life of thine, what will at length remain but one little heap of ashes!”
* This post originally identified Asa Hutchinson as the Governor of Arizona. We regret the error.